The State of Western Australia v Waretini
[2014] WADC 115
•28 AUGUST 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: BUNBURY
CITATION: THE STATE OF WESTERN AUSTRALIA -v- WARETINI [2014] WADC 115
CORAM: BOWDEN DCJ
HEARD: 27 AUGUST 2014
DELIVERED : 28 AUGUST 2014
FILE NO/S: IND 51 of 2014
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
MARCUS TEWI TE PAURI WARETINI
Catchwords:
Drug offence - Propensity/relationship evidence is of accused selling drugs as a principle offender - Charged offence alleged accused was in a joint criminal enterprise to sell drugs and/or aiding the sale of drugs - Criminal Code s 7(a) and s 7(c) - Is assisting purchaser to purchase drugs mutual exclusive of being in a joint criminal enterprise with the seller to sell drugs and/or aiding the seller?
Legislation:
Evidence Act 1906
Result:
Application to adduce propensity/relationship evidence granted
Representation:
Counsel:
The State of Western Australia : Mr T Karunaratne
Accused: Mr M Owens
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: Max Owens & Co
Case(s) referred to in judgment(s):
AJE v The State of Western Australia [2012] WASCA 185
Buiks v The State of Western Australia [2008] WASCA 194
Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385
Huynh v The Queen [2013] HCA 6; (2013) 228 A Crim R 306
Lacco v The State of Western Australia [2006] WASCA 152
Mansell v The State of Western Australia [2009] WASCA 140
R v Beck [1990] Qd R 30
R v Sherrington; R v Kulcher [2001] QCA 105
R v Wyles; Ex parte Attorney-General [1977] Qd R 169
Stubley v The State of Western Australia [2011] HCA 7
The State of Western Australia v Osborne [2007] WASCA 183
Warren & Ireland v The Queen [1987] WAR 314; (1985) 15 A Crim R 317
Webb vThe Queen (1990) 47 A Crim R 97
Zammit v The State of Western Australia [2007] WASCA 66
BOWDEN DCJ: The accused is charged with selling a prohibited drug, namely methylamphetamine, to another on 12 December 2013 at Australind.
The application
The State seeks to lead evidence (the disputed evidence) that on 27 November 2013 the accused sold methylamphetamine to an undercover officer on five separate occasions being 27 November 2013 (0.8 grams for some jewellery), 2 December 2013 (2.0 grams for some jewellery), 5 December 2013 (0.5 grams for some jewellery), 17 December 2013 (0.5 grams for a quad bike and a motorbike) and 23 December 2013 (1.75 grams for a quad bike and a motorbike).
In each of these cases the accused sold the drugs directly to the undercover officer in that he handed possession of the drugs to the officer and that officer provided the consideration directly to the accused.
The accused pleaded guilty to five counts of selling methylamphetamine in the Magistrates Court but has yet to be sentenced.
The application is opposed by the accused.
The factual basis of the case against the accused
The State alleges that on 12 December 2013 an undercover officer went to the accused's house and asked if he could supply her with an ounce and he replied that he could get her 'a big one' if she had cash.
The accused then contacted a third person advising them that he was with a person who had sufficient money to purchase an ounce. Following this conversation the accused told the undercover officer that she could examine the ounce and was not required to purchase it if she did not wish to and said he would arrange a meeting for that purpose.
Subsequently, the accused met the undercover officer at a carpark and they travelled to the third party's house. At one time the accused told the undercover officer that the price for an ounce would be $14,000 and discussed with the undercover officer the method of payment and said he would try and push the third party for a lower price.
When the accused and the undercover officer arrived at the third party's residence, they went into the rear bedroom where the third person and another man were present. The undercover officer discussed directly with the third person the price and quantity, and once they agreed the price the undercover officer handed directly to the third person a sum of cash. The state says the accused was present throughout these negotiations.
The undercover officer and the accused then left the third party's residence and drove back to the carpark where the accused, at his request, received some payment from the undercover office by way of a bag of jewellery.
The accused was arrested on 9 January 2014. He told the police during a VROI that he contacted the third party who was his supplier and told her that he had a person (the undercover officer) with him who wanted some drugs. The third party asked him to bring that person over, which he did, and he said that after introducing them, he let them make their own arrangements. He said the two of them did the deal behind closed doors and he waited until it was finished. He also said he only went to the third party's residence with the undercover officer because she was a female and had told him she did not want to be 'rolled'.
The legal basis of the case against the accused
The prosecution intend to present the case against the accused on two legal bases, that is, that he is either a principal under s 7(a) of the Criminal Code or that he aided the third party in committing the offence (s 7(c) of the Criminal Code).
To be guilty as a principal offender under s 7(a) the prosecution would need to establish beyond reasonable doubt:
(i)that the undercover officer and the accused expressly or impliedly reached an agreement that the third party would sell methylamphetamine to the undercover officer;
(ii) pursuant to that agreement methylamphetamine was sold to the undercover officer by the third party; and
(iii) the accused participated in the prosecution or furtherance of that agreement by doing an act or acts (introducing the undercover officer to the third party, transporting the undercover officer to the third party or in some circumstances being present when the sale occurred (Huynh v The Queen [2013] HCA 6; (2013) 228 A Crim R 306).
So that if it be proven that pursuant to that agreement and in furtherance of it the accused or the third party does or they do between them all the things that are necessary to commit that offence, each is guilty of the offence regardless of the individual acts each performed under the doctrine of joint criminal enterprise or acting in concert which falls within s 7(a) of the Criminal Code: R v Wyles; Ex parte Attorney‑General [1977] Qd R 169; Webb v The Queen (1990) 47 A Crim R 97; Warren & Ireland v The Queen [1987] WAR 314; (1985) 15 A Crim R 317; R v Sherrington; R v Kulcher [2001] QCA 105; Lacco v The State of Western Australia [2006] WASCA 152 [54].
The other basis upon which the prosecution can establish the liability of the accused is that he aided the third party in the commission of the offence of selling methylamphetamine.
To convict the accused as an aider pursuant to s 7(c), the prosecution must establish:
(i) that the accused had actual knowledge that the third party was selling methylamphetamine to the undercover officer;
(ii) that he gave encouragement, help, support or assistance to the third party to achieve that sale; and
(iii) he intended to give encouragement, help, support or assistance to the third party to achieve that sale.
If it is alleged that the aid is rendered before the commission of the offence, then under (i) above the prosecution must prove the accused knew generally what offence would or might be committed.
The State's submission
The State says that the disputed evidence is admissible because:
(a)it demonstrates that the relationship between the accused and the undercover officer is one of trust as between a drug dealer and his customer;
(b)it is significantly probative of the accused's reasons for introducing the undercover officer to the third party;
(c)demonstrates the accused propensity to actively be involved in selling methylamphetamine to an undercover officer;
(d)it is significantly probative in showing that the accused purpose in going to the third party's house was for the purpose of a drug transactions and not just to provide protection to the female undercover officer so she would not be 'rolled' and the evidence makes it more likely that the accused played an active role when the undercover officer and the third party met rather than just waiting outside the room while the transaction took place.
The defence submissions
The defence point out that the disputed evidence involves a direct sale by the accused to the undercover officer and the consideration passing directly from the undercover officer to the accused whereas the indictable offence alleges that drugs were passed by the third party to the undercover officer who paid the consideration directly to the third party and the accused received some jewellery from the undercover officer for facilitating 'the sale'.
The defence say that they do not advance any innocent association or the charge transaction or attempt to claim that the accused had nothing to do with methylamphetamine and that the charged offence is a separate and distinctive offence that can be dealt with in its entirety without resort to the disputed evidence.
Further, they point out that the State's case is that the accused was acting at the request of the undercover officer to assist her in purchasing the drug and the accused was not the actual seller of the drug but is liable under s 7 of the Criminal Code.
I do not understand that submission because even if the accused was the actual seller, his criminal liability would be under s 7(a). I take it as a reference to the extension of the accused's criminal liability on the basis that he is said to have aided under s 7(c) the offence or participate in a joint criminal enterprise s 7(a).
The defence say the State's case is that the accused assisted the undercover officer in the purchase of drugs in the charged act and this is so different to his acts in assisting the seller in the sale of drugs in the disputed evidence that the latter cannot be propensity or relationship evidence or be evidence of significant probative value and if it was admitted the trial would be unfair.
Section 31A of the Evidence Act1906
For evidence to be admitted pursuant to s 31A of the Evidence Act the evidence must be:
(a)relationship and/or propensity evidence;
(b)have significant probative value; and
(c)the probative value of the evidence compared to the degree of risk an unfair trial must be such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
The disputed evidence is evidence of the conduct of the accused and is clearly propensity evidence and it is also evidence of a tendency that he has or had and is also relationship evidence.
The evidence is of significant probative value because it is more than merely relevant and is evidence, that is, probative value is important or of consequence, and rationally affects, directly or indirectly, the assessment of the probability of a relevant fact in issue to a significant extent and/or explains a statement or event that would otherwise appear curious or unlikely': Dair v The State of Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385, 60 - 61 (Steytler P); Buiks v The State of Western Australia [2008] WASCA 194; Stubley v The State of Western Australia [2011] HCA 7 [11].
The accused has not made any formal admission of any fact in issue and the State is entitled to present its case on the basis that all facts are in dispute. The prohibitive value of the disputed evidence is to be taken at its highest from the prosecutions perspective: AJE v The State of Western Australia [2012] WASCA 185 [73].
Establishing that the accused was, in the weeks before and after the alleged offence, selling methylamphetamine to the undercover officer and that the third party was his source is significantly probative of facts relevant to facts in issue in this trial.
It is evidence of significant probative value because it makes it more likely that the accused was involved in a joint criminal enterprise to sell methylamphetamine and was doing an act to aid the third party.
It is significantly probative of whether his presence whilst the drugs were sold and prices negotiated by the third party with the undercover officer is 'mere' presence which in itself cannot be aiding or the type of presence which can amount to aiding because it provides encouragement help, support or assistance such as a sign of moral support or of willingness to help or by embolden the offender or egging him on or conveying that the accused ascents and concurs to his commission of the crime: R v Beck [1990] Qd R 30, 37.
It is also significantly probative of whether the accused's presence when the crime was committed was pursuant to the agreement with the third party that the accused and the third party would sell methylamphetamine to the undercover officer. Presence in those circumstances may support the inference that the accused was party to that agreement. If the accused is present when the crime is committed pursuant to that agreement that presence is sufficient proof of his participation in the joint criminal enterprise: Huynh v The Queen.
The fact that the accused has been involved in the business of selling methylamphetamine obtained from the third party to the undercover officer makes it more likely that the accused's presence was to aid the sale and/or was pursuant to a joint criminal enterprise.
The accused person can assist the undercover officer in purchasing drugs and still be in a joint criminal enterprise with the third party to sell drugs to that officer undercover officer and or aid the third party in that sale.
The two positions are not mutually exclusive. The question is whether the jury are satisfied that the accused was a party to the joint criminal enterprise and or aided the commission of the offence, if so he is properly convicted irrespective of whether those acts also assisted the undercover officer in the purchase of the drugs.
Fair-minded people who are 'members of the public and not lawyers, and who have informed themselves at least of the most basic considerations relevant to arrive at a conclusion founded on a fair understanding of all relevant circumstances' would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial: Dair [66] (Steytler P).
Any risk of the evidences misuse can be overcome by a jury direction about the basis of admissibility and the manner in which the evidence may and may not be used: The State of Western Australia v Osborne [2007] WASCA 183 [39]. It is accepted that a jury will accept and faithfully apply the directions of a trial judge: Zammit v The State of Western Australia [2007] WASCA 66 [65]; Mansell v The State of Western Australia [2009] WASCA 140 [49].
The jury would be instructed that it does not follow that just because the accused had sold methylamphetamine on other occasion that he is guilty of the offence they are considering and they could only convict on this offence if they are satisfied that all of the elements were established.
For the jury not to be informed that the accused was at the time of the alleged offence in the business of drug dealing, would lead the jury to consider his conduct and presence at the scene of the sale in relation to the alleged offence in isolation and without its proper context.
I grant leave to the State to lead the disputed conduct evidence.
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