Tresnjo v The State of Western Australia
[2015] WASCA 12
•19 JANUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRESNJO -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 12
CORAM: McLURE P
MAZZA JA
HALL J
HEARD: 24 JULY 2014
DELIVERED : 19 JANUARY 2015
FILE NO/S: CACR 179 of 2013
BETWEEN: LEJLA TRESNJO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 183 of 2013
BETWEEN :LORIANA CREWS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND 1692 of 2011
Catchwords:
Criminal law - Possession of a prohibited drug with intent to sell or supply - Application for leave to appeal against conviction - Application to adduce additional evidence - Whether judge should have disqualified himself for bias - Whether judge erred in refusing application for suppression order - Whether miscarriage of justice by reason of pre-trial publicity, allegedly late disclosure, allegedly illegal telephone intercept and surveillance device warrants, alleged incompetence of trial counsel - Whether trial judge's summing up 'biased' against appellants - Whether prosecution 'deceived' jury
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
CACR 179 of 2013
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
CACR 183 of 2013
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Lawless v The Queen (1979) 142 CLR 659
Michaels v The State of Western Australia [2009] WASCA 174
Neumann v The State of Western Australia [2013] WASCA 70
R v Soma [2003] HCA 14; (2003) 212 CLR 299
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Western Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10
McLURE P: I agree with Mazza JA.
MAZZA JA: Ms Tresnjo and Ms Crews were tried together between 4 and 20 June 2013 in the District Court on an indictment which read:
(1)On 10 September 2010 at South Perth Lejla Tresnjo and Loriana Crews had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
(2)On 24 September 2010 at South Perth Lejla Tresnjo and Loriana Crews had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
Each charge is contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
On 20 June 2013, Ms Tresnjo was acquitted of count 1, but convicted of count 2. Ms Crews was convicted of both charges. Later, Ms Crews was sentenced to a total of 9 years' imprisonment. Ms Tresnjo was sentenced to 10 years' imprisonment.
The appellants now seek leave to appeal against their convictions, raising various contentions to which I will refer later. They also seek to adduce additional evidence in the appeal. Ms Crews has applied for an 'unedited' audio recording of the trial and sentencing proceedings to be adduced in this court.
For the reasons which follow, Ms Tresnjo's and Ms Crews' applications for leave to appeal should be refused, with the consequence that their appeals should be taken to have been dismissed: s 27(1), (2) and (3) Criminal Appeals Act 2004 (WA). The other applications should also be dismissed.
The State's case
The State alleged that each appellant was involved in a joint drug dealing enterprise with three others: Mr Bernd Neumann, Mr John Cameron and Mr Stephen Cookson. Mr Neumann was, at the relevant time, 55 years of age and was a drug user and dealer. He derived some income from day trading shares. He also had some connection with the horse racing industry and was involved in a legitimate business which supplied veterinary drugs and supplements to the Western Australian horse racing industry. Relevantly, Mr Neumann had access to two products. These products, namely TB‑500 and Bio‑Bute, were manufactured by a Sydney‑based company called MediVet. Mr Neumann
used the business as a front for his drug dealing enterprise. The State alleged that Mr Neumann was primarily involved in the importation of methylamphetamine from Sydney into Western Australia and the distribution of that drug in this State. He rented an apartment at 2/31 Mill Point Road, South Perth (the South Perth apartment) from which he conducted this business.
Mr John Cameron was a long‑standing associate of Mr Neumann. He was based in Sydney. His role in the enterprise was essentially to pick up and then transport drugs from Sydney to Perth. However, he was more than a mere courier. Mr Neumann trusted him to carry large sums of money from Perth to Sydney and to perform other duties connected with the enterprise.
Mr Stephen Cookson was a horse trainer who had met Mr Neumann through Ms Crews. Mr Cookson's role was to distribute the drugs which had been imported from the Eastern States and to collect drug debts. Mr Cookson bought a small quantity of MediVet drugs from Mr Neumann. Mr Cookson, Mr Neumann and Ms Crews would, in conversations, refer to TB‑500 and Bio‑Bute to disguise their conversations about drug dealing.
Ms Crews was, at the time of the offences, 59 years of age. She conducted a legitimate business as a finance broker. She met Mr Neumann in 2008. She was not a drug user, but was in a personal relationship with Mr Neumann and knew of his drug addiction and dealing. During August and September 2010, Ms Crews and Mr Neumann were living together in an apartment she leased at 5/23 Bow River Crescent, Burswood. Both Ms Crews and Mr Neumann had a set of keys to the South Perth apartment.
Ms Crews' role in the enterprise was as a 'trusted confidante' who acted as Mr Neumann's 'eyes and ears', particularly when he was away on drug dealing business in the Eastern States. In addition to having access to the South Perth apartment, she frequently acted as an intermediary to facilitate dealings between Mr Neumann, Mr Cameron and Ms Tresnjo. Ms Crews' credit card was used to purchase flights for Mr Cameron and Mr Neumann. She was involved in counting cash used to purchase drugs.
Ms Tresnjo was, at the relevant time, 33 years of age. She was a user of illicit drugs. She had previously been in a relationship with an associate of Mr Neumann - Mr Wayne Yanko. Some time in mid August 2010, Ms Tresnjo and Mr Neumann discussed doing 'work' together. Ms Tresnjo's main role in the enterprise was to find persons from whom methylamphetamine could be obtained and to assist in its purchase.
In about May 2010, police commenced 'Operation Grainsville' which targeted the illicit drug activities of Mr Neumann and others. The police conducted surveillance on him and others. This included physical surveillance, the installation of an audio and later a video surveillance device at the South Perth apartment and the interception of a number of mobile telephones used by Mr Neumann and his associates. At the same time, a similar police operation was being conducted in New South Wales into Mr Cameron's activities.
The State's case against Ms Tresnjo and Ms Crews relied, in large part, upon intercepted telephone conversations and text messages involving Mr Neumann, Mr Cameron, Mr Cookson and them. In addition, important evidence against the appellants was obtained from the devices installed in the South Perth apartment.
On 25 August 2010, Mr Neumann and Mr Cookson spoke about a recently obtained batch of methylamphetamine from New South Wales which was said to not be up to the usual quality. As a result, on 3 September 2010, Mr Neumann travelled to Sydney to discuss the matter. After his arrival in Sydney he telephoned Ms Crews and told her, 'I'm just over here just getting one of those [money] counting machines'. She agreed with Mr Neumann that sending it to her post office box would be safer.
On 4 September 2010, Ms Tresnjo flew from Perth to Sydney where she met with Mr Neumann and Mr Cameron. She told Mr Neumann that she had an alternative supplier who could supply good quality methylamphetamine. Ms Tresnjo arranged a meeting between Mr Neumann and that supplier. On 5 September 2010, Mr Neumann expressed satisfaction to Mr Cookson that a new supply had been found at a good price.
On 5 September 2010, Mr Cameron, at Mr Neumann's request, flew from Sydney to Perth to obtain money to fund the prospective purchase. He was to do this by selling drugs and collecting debts from Mr Neumann's customers. Ms Crews' credit card was used to pay for Mr Cameron's airfare. The South Perth apartment was used as his base for this task. Mr Neumann remained in Sydney. He had an ear infection and could not fly.
On 6 September 2010, Ms Crews spoke to Mr Neumann. She told Mr Neumann that Mr Cameron would be 'busy today'. She told Mr Neumann she was 'getting everything organised'. Ms Crews then spoke to Mr Cookson, telling him, in effect, to call on Mr Cameron to make arrangements for the collection of money to purchase drugs. A sum of money was collected and Ms Crews assisted with the counting and bundling of it.
Late on the evening of 7 or perhaps early on 8 September 2010, Mr Cameron flew back to Sydney with a large quantity of cash. At Mr Neumann's request, Ms Crews carried some of that cash to Perth airport in her handbag and, once past security, handed it to Mr Cameron.
On the afternoon of 8 September 2010, Ms Tresnjo sent a text message to Mr Neumann, asking him, 'Hey what time you wanna go shopping?'. Subsequently, Mr Neumann, using the money which Mr Cameron had transported, purchased an unknown quantity of methylamphetamine which was the subject of count 1, from a supplier introduced to him by Ms Tresnjo.
On 10 September 2010, Ms Tresnjo returned to Perth. Mr Cameron also flew from Sydney to Perth, carrying the methylamphetamine Mr Neumann had purchased. Mr Neumann remained in Sydney. On his return to Perth, Mr Cameron went directly to the South Perth apartment where he was met by Ms Crews, who let him in. That evening, Mr Cameron and Mr Cookson sold the methylamphetamine from the South Perth apartment. Ms Crews kept Mr Neumann up to date with the sales by telephone. Once the buyers had left Ms Crews spoke to Mr Neumann and said, 'Everything has gone. Everybody is safe'. Later, Ms Crews said to Mr Neumann, 'I just want this whole shit to finish and I get there and I'm making my millions of bloody dollars, and I don't give a shit about anything else. Okay? And it's happening. Okay?' The precise amount of methylamphetamine carried by Mr Cameron and distributed that night is not known. It is clear that it was substantial.
On 13 September 2010, Mr Neumann returned to Perth. By about this time, the relationship between Mr Neumann and Mr Cookson had soured to the point where Mr Neumann excluded Mr Cookson from further participation in the enterprise. Ms Crews assisted in this by lying to Mr Cookson about Mr Neumann's activities and whereabouts.
On 14 September 2010, Mr Neumann, Mr Cameron and Ms Tresnjo met at the South Perth apartment where they spoke about the drug enterprise.
On 15 September 2010, Mr Neumann and Ms Crews, using the machine that Mr Neumann had purchased in Sydney and had sent to Ms Crews' post office box, counted $140,000 in cash. That sum was then packaged.
On 16 September 2010, Ms Tresnjo and Mr Cameron flew to Sydney on separate flights. Mr Cameron brought the $140,000 in cash with him. The purpose of the trip was for Ms Tresnjo to source methylamphetamine from her contacts for Mr Cameron to purchase and transport to Western Australia.
On 22 September 2010, Ms Tresnjo flew back to Perth. On her arrival she went straight to the South Perth apartment to meet Mr Neumann. An optical surveillance device recorded their conversation in which the quality of the methylamphetamine Ms Tresnjo had sourced was discussed; there was also some talk about some 'pseudo oil' that she had obtained in Sydney for Mr Neumann but had forgotten to take with her. Ms Tresnjo contacted Mr Cameron, telling him where the oil was and to bring it with him. There was a further conversation that day about their ongoing methylamphetamine business.
Shortly after 5.35 pm on 22 September 2010, Mr Cameron met a man known as both 'Jim' and 'Adam'. This person was an acquaintance of Ms Tresnjo. Mr Cameron gave 'Jim' the $140,000 and received in return a quantity of methylamphetamine. Mr Cameron also purchased a second quantity of methylamphetamine on behalf of Ms Tresnjo using money provided by her. The source of this quantity of the drug was a friend of Ms Tresnjo known variously as 'Steve', 'S' and 'ET'. The two quantities of methylamphetamine were different in appearance. One quantity was purple and had an unpleasant smell. Ms Tresnjo's was paler in colour and was described as 'yellow'. Ms Tresnjo's share weighed about a pound.
On 23 September 2010, there was a series of text messages between Mr Cameron, Mr Neumann and Ms Tresnjo concerning an allegation that the seller of the $140,000 worth of methylamphetamine had been short‑changed $5,000; that is, he had only received $135,000. Mr Neumann sent Mr Cameron a text message:
There was definatly 140 in that wrap my lady [Ms Crews] just confirmed it because she helped me do it and i asked what was there and she said 140 [sic].
In later text messages on 23 September 2010, Mr Cameron reported to Mr Neumann about the colour and condition of the methylamphetamine.
On the morning of 24 September 2010, Mr Neumann and Ms Tresnjo texted each other and arranged to 'catch up' when 'sir' [Cameron] arrived at 'lunch time'.
That morning, Mr Cameron flew to Perth from Sydney. He carried the methylamphetamine in a belt. Upon his arrival at Perth airport at approximately 11.18 am, he took a taxi to the South Perth apartment. There, at about 12.12 pm, he was met and taken inside by Ms Crews.
Inside the apartment, Ms Crews and Mr Cameron had a discussion about the missing $5,000. Ms Crews was adamant that there was $140,000 because she had counted it. The State's case was that Mr Cameron removed the packages of methylamphetamine in her presence. Mr Cameron told Ms Crews about the condition of the drug that he had been given. He told her about the colours of the methylamphetamine and he remarked about its smell. Ms Crews said, 'Yeah, you can smell it'. He described to her how the 'weight' was wrong. He told her what he had done to fix it. Ms Crews replied, 'Yeah. That's all right'.
At about 12.34 pm, Mr Neumann arrived at the South Perth apartment. After Mr Neumann's arrival, Mr Cameron spoke to him about the colour and smell of the substance. Ms Crews was present during that discussion.
Prior to Mr Neumann's arrival, Ms Crews had taken some MediVet products stored at the South Perth apartment and placed them on the kitchen bench. Ms Crews left the South Perth apartment at about 12.49 pm. While outside the apartment, Mr Neumann brought the MediVet products to her.
At approximately 12.59 pm, police entered the apartment and arrested Mr Neumann and Mr Cameron. They seized, in total, 860.9 g of methylamphetamine. One package was found on the kitchen floor and two packages were found on top of the island bench in the kitchen. Each of these three packages contained four bags of white‑coloured methylamphetamine weighing a little less than 1 oz each. The total weight of these bags was 432.9 g. A fourth bag wrapped in grey tape was found in a white bin liner on the corner of the island bench. Inside were four bags of pink or purple‑coloured methylamphetamine, each weighing slightly more than 100 g. Their total weight was 428 g. Police also discovered some methylamphetamine hidden behind a fire hose reel in the foyer of the apartment and a small vial containing 0.6 ml of oil.
A number of items such as electronic scales, mobile phones and documents were seized. The documents included handwritten figures and notations, apparently written by Mr Neumann, consistent with drug dealing: exhibit 25.
At around 3.15 pm, while the police were searching the apartment, Ms Tresnjo sent Mr Neumann a text message. A few minutes later, one of the police officers responded, using Mr Neumann's mobile telephone, inviting her to come over. Ms Tresnjo arrived at the apartment for the purpose of picking up her share of the drugs. She was arrested and found to be carrying five mobile phones and $19,800 in cash.
At around 1.10 pm, Ms Crews was stopped in her vehicle in Leederville. She told the police that she lived at her unit in Burswood. When asked about Mr Neumann, she described him as 'her bonking friend'. She also denied that he lived at the Burswood address. Police accompanied Ms Crews to her apartment and searched it. There they found clothing and documents belonging to Mr Neumann. $29,500 in cash was found in a black bag in a cupboard with Mr Neumann's belongings. The money‑counting machine was also located at the apartment.
Ms Tresnjo was interviewed by police on the evening of 24 September 2010. She denied any involvement with the possession of the methylamphetamine that had been found at the South Perth apartment and denied that Mr Cameron had brought the vial of liquid from Sydney for her.
In respect of each charge, the State did not allege that the appellants physically possessed the methylamphetamine. The State's case was that each of Ms Tresnjo and Ms Crews were guilty of the offences on the basis that they were involved in a joint criminal enterprise with Mr Neumann and others. Alternatively, the State alleged that each of Ms Tresnjo and Ms Crews aided Mr Neumann in the commission of the offences.
The defence cases in general
The appellants were each represented by highly experienced criminal defence barristers. Each of Ms Tresnjo and Ms Crews gave evidence in their defence. Neither of them, at any point in the trial (or, for that matter, before it), took issue with the legality or admissibility of any of the telephone intercept and surveillance device product, nor did they dispute their participation in that material. They did not dispute that Mr Neumann, Mr Cameron and Mr Cookson were involved in drug dealing. In fact, there was no serious dispute about the occurrence of the surrounding circumstances of the offending. Rather, each of the appellants asserted that there were innocent explanations for the communications and the surrounding circumstances.
Ms Crews' defence
Ms Crews denied any knowledge of Mr Neumann's drug dealing business and said that she did not knowingly participate in it. She believed that his business dealings were legitimate.
She testified that in 2010 she was in a relationship with Mr Neumann, but wanted to keep her independence. During the period between July and September 2010, they did not spend much time together.
Ms Crews testified that Mr Neumann earned a living day trading in shares. He was also involved in a business which sold MediVet products. She said she believed Mr Neumann to be a person who had substantial personal wealth, earned from his legitimate business dealings. She believed that Mr Neumann's trips to Sydney were to do with share transactions. She denied speaking to Mr Neumann about drugs in code. She said that the references in their conversations to MediVet products were genuine.
Ms Crews said that she counted by hand $140,000 in cash on 2 September 2010, believing it to be money for the purchase by Mr Neumann of shares. She denied ever using the money counting machine.
Ms Crews testified that she had known Mr Cameron since 2009. She said that she did not know of his involvement in illicit drug dealing. She said that in 2010 she became concerned about Mr Cameron's depression, and that she and Mr Neumann wanted Mr Cameron to relocate to Perth so that she could use his accounting skills.
Ms Crews said that she met Ms Tresnjo on two occasions. She said that she thought Mr Neumann was trying to help her relocate to Sydney.
With respect to Mr Cookson, Ms Crews said that her connection with him was that he trained a horse owned by a syndicate in which she was a party.
In relation to count 1, Ms Crews testified that on 10 September 2010 she did not see any drug dealing in the South Perth apartment.
As to count 2, Ms Crews said she had no knowledge of, nor did she see, any illicit drug dealing. Her counsel in his closing address submitted that the illicit drug enterprise 'was actively hidden from her' (ts 1438). He referred to Ms Crews 'as a mushroom, kept in the dark and fed manure' (ts 1447).
As part of her defence, evidence was adduced of conversations intercepted by the authorities but not tendered by the prosecution which, it was said, confirmed her case: exhibit 65.
Ms Tresnjo's defence
Ms Tresnjo admitted that she was a long time user of illicit drugs. She said that she knew Mr Neumann and was in contact with him in August and September 2010. She testified that Mr Neumann supplied her with methylamphetamine on occasion.
Ms Tresnjo testified that she was not involved in any drug dealing enterprise with Mr Neumann and the others said to be associated with him. She denied sourcing or obtaining any methylamphetamine on his behalf and, in particular, the methylamphetamine the subject of counts 1 and 2.
Ms Tresnjo testified that in early 2010, she separated from Mr Yanko and planned to move from Perth to Sydney.
Ms Tresnjo said that she had a friend, Mr Mili Separovic, who was prepared to help her financially. She said that Mr Separovic gave her a sum of $50,000 and later a further $20,000. Mr Separovic gave unchallenged evidence to this effect. It was this latter payment which the police found on her on 24 September 2010.
Ms Tresnjo explained her travel to Sydney on the basis that she was looking for an apartment in that city.
Ms Tresnjo admitted that she knew Mr Cameron. She said that by September 2010 they were friends and that they used drugs together.
Ms Tresnjo said that she hardly knew Ms Crews and did not know Mr Cookson.
As to count 1, when Ms Tresnjo sent the text message, 'Hey, what time you wanna go shopping?' she was referring to shopping for a suit for Mr Neumann. As I mentioned earlier, Ms Tresnjo was acquitted of this count.
As to count 2 she, in effect, said that she had nothing whatsoever to do with the drugs Mr Cameron brought to the South Perth apartment on 24 September 2010. She said that discussions she had with friends she knew in Sydney were in connection with a 'money swap' and acquiring a small amount (half a gram) of methylamphetamine to be supplied to Mr Cameron. She also arranged for Steve to provide Mr Cameron with an 'eight ball' of methylamphetamine to bring to her for her own use. She said that she only went to the South Perth apartment to say 'hello' and to get 'the eight ball' Mr Cameron had bought for her.
Charges against Messrs Neumann, Cameron and Cookson
Mr Neumann was charged with one count of conspiracy to possess methylamphetamine with intent to sell or supply and three counts of possession of methylamphetamine with intent to sell or supply.
On 16 April 2012, he pleaded guilty to these charges. He was subsequently sentenced to a total effective sentence of 15 years' imprisonment with eligibility for parole. His appeal against this sentence was dismissed: Neumann v The State of Western Australia [2013] WASCA 70.
Mr Cameron was also charged with offences relating to the joint criminal enterprise. While in custody awaiting trial, he took his life.
Mr Cookson was charged with one count of conspiracy and one count of possession of methylamphetamine with intent to sell or supply. He was killed in December 2012. Some of his remains were found on Rottnest Island in January 2013, in circumstances which attracted considerable notoriety and publicity. Following his death, the charges against him were discontinued.
The appeal
Although the appellants were represented by counsel at their trial, they have, at all times in this appeal, represented themselves.
Each appellant has filed separate papers. However, there is a considerable, but not complete, overlap in their contentions and arguments.
The appellants' grounds of appeal and written submissions in support of them, which were filed prior to the leave hearing on 24 July 2014, were unclear and barely comprehensible. At the leave hearing, at the request of the appellants, each of them was granted leave to file further written submissions and to file an application to adduce additional evidence. Each appellant has since filed further submissions and applied to adduce additional evidence. The additional evidence is contained in their affidavits sworn 13 August 2014 and a lever‑arch file which was delivered to the court on 21 August 2014. The file's contents are not indexed nor adequately organised. I have annexed to these reasons a schedule setting out the contents of the lever‑arch file. A large proportion of the material comes from the prosecution brief, but was not used at trial. All of the material is new, rather than fresh, evidence. It is not, either individually or in combination, strong enough to show that the appellants are innocent or to raise such a doubt that this court should conclude that each of them should not have been convicted: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 676.
Unfortunately, the appellants' additional written submissions are prolix and suffer from the same problems as their earlier submissions.
A survey of the grounds of appeal and the oral and written submissions in support of them (including in the lever‑arch file) reveals that the main and common contentions of each appellant are:
1.Martino CJDC should have disqualified himself from determining any pre‑trial application due to his 'possible relationship' with Dominic Martino. Indeed, all West Australian judges 'should have disqualified themselves from hearing evidence that impugned the character of [Martino CJDC's] relative'.
2.Martino CJDC erred in refusing an application for a suppression order made during the course of a directions hearing on 18 January 2013.
3.The appellants suffered a miscarriage of justice because of pre‑trial publicity relating to Mr Cookson which gave rise to an unfair trial.
4.The appellants suffered a miscarriage of justice in the conduct of the trial because of the manner in which disclosure was given by the prosecution.
5.The appellants suffered a miscarriage of justice because the listening device and telephone intercept material was inadmissible.
6.The appellants suffered a miscarriage of justice because of the incompetence of their trial counsel.
7.The trial judge's summing up was 'biased' against the appellants.
8.The prosecution 'deceived' the jury by failing to reveal that Mr Cameron acted as a police agent when he delivered the drugs the subject of count 2 on the indictment.
9.There was a miscarriage of justice because count 1 was framed as a charge of possession of methylamphetamine with intent to sell or supply to another, whereas the analogous offence for which Mr Neumann was convicted was a conspiracy.
Ms Crews alone contended that she suffered a miscarriage of justice because the prosecutor was permitted to cross‑examine her with respect to her knowledge of Mr Neumann's prior convictions.
Ms Tresnjo alone contended that:
1.The State's case was that she was guilty of each offence on alternative bases, either that she was a party to a joint criminal enterprise or that she aided another to commit an offence. Ms Tresnjo contends that his Honour should have directed the jury, but failed to do so, that they had to be unanimous as to the pathway to guilt.
2.In the absence of the jury and after the trial judge had sent the jury out to deliberate, his Honour, when discussing the direction concerning alternative paths to conviction, used the word 'transitory' to characterise the difference between them. Ms Tresnjo alleges that this was somehow erroneous. It appears that she believes that this exchange occurred in the presence of the jury.
Contentions 1, 2 and 3 - Proceedings before Martino CJDC and publicity
These contentions may be dealt with together.
On 18 January 2013, a directions hearing took place before Martino CJDC. Each appellant was represented by counsel. The prosecutor sought to hand up a notice of discontinuance in respect of Mr Cookson, whose death, as I mentioned earlier, and the circumstances surrounding it had been the subject of considerable publicity. His Honour did not immediately accept the notice of discontinuance for reasons which are immaterial to this appeal. There was also some discussion about the listing of the trial. At that time, it was thought that the trial would occur in either April or June 2013.
Counsel for Ms Crews then sought a suppression order in relation to the publication of Ms Crews' name, 'in light of the circumstances of the demise of [Mr Cookson]' (ts 73). The precise terms of the proposed order were not spelt out. Counsel for Ms Crews elaborated. He explained that there had been, as he put it, 'a good deal of publicity' concerning Mr Cookson's 'involvement in various unsavoury aspects of society' and the association of Ms Crews' name with Mr Cookson would prejudice potential jurors against her. Moreover, it was said, any association between Mr Cookson and Ms Crews would damage her reputation and her professional life. Counsel for Ms Tresnjo joined in making the application on the basis of Ms Crews' counsel's first submission.
Martino CJDC refused the application for a suppression order. His Honour acknowledged the principle of open justice. He noted that there had already been a great deal of publicity about Mr Cookson and that it would be necessary for the trial judge to consider giving an appropriate direction to the jury to disregard any matters it had seen or heard outside the court about him. He considered that any risk of an unfair trial could be obviated by such a direction. He said that the adverse impact upon an accused's professional and personal life by publication of his or her name was not a sufficient basis upon which to make a suppression order.
At no stage in the proceedings before Martino CJDC did either counsel apply to have his Honour disqualify himself for actual or apprehended bias. As his Honour was not asked to disqualify himself, it cannot be said that he has made any error of law in failing to do so. In substance, the bias contention appears to be that there has been a miscarriage of justice because a fair‑minded lay observer might reasonably have apprehended that his Honour might not bring an impartial mind to the resolution of the application for a suppression order. The factual basis for this contention is Martino CJDC's 'possible relationship' with Dominic Martino. There does not appear to be any allegation of actual bias.
Dominic Martino did not give evidence at trial. However, Ms Crews referred to him in the course of her evidence. According to her, Dominic Martino was Mr Neumann's stockbroker and that Mr Neumann went to Sydney on 3 September 2010 to see him (ts 1076, 1279 ‑ 1281). As to the 'possible relationship' between Martino CJDC and Dominic Martino, the appellants assert in their submissions filed after the leave hearing that it is based on Ms Crews' 'personal knowledge of the family association … derived from 45 years associated in banking and finance, together with 20 years of … voluntary involvement in charity work'.
One would think that if Ms Crews had the knowledge she now claims and she thought it was significant, she would have raised it at the directions hearing. Nevertheless, having regard to the material now presented by the appellants, there is no basis whatsoever to the allegation of apprehended bias, much less to any allegation of actual bias. The 'possible relationship' alleged by the appellants appears to be based on some kind of family association between Martino CJDC and Dominic Martino. The precise nature of the association is general and extremely vague. In substance, it goes no further than that his Honour and Mr Martino share the same surname.
As there is no merit in the contention that Martino CJDC should have disqualified himself, there is no merit to the submission that all Western Australian judges were disqualified. In any event, even if Martino CJDC should have disqualified himself, it does not follow that all Western Australian judges were disqualified.
Contention 1 has no reasonable prospect of succeeding.
As to contention 2, his Honour did not err in refusing to grant a suppression order.
The true issue was how to deal with the publicity concerning the circumstances of Mr Cookson's death and his alleged criminal associations. The suppression of the appellants' names would not have had any effect on this issue. His Honour was, with respect, correct to refuse to make the order sought by the appellants and to leave it to the trial judge to deal with the consequences of Mr Cookson's death. Any damage to Ms Crews' reputation or professional standing as a result of the charges was not a proper basis on which to make a suppression order in her favour: Western Australian Newspapers Ltd v The State of Western Australia [2010] WASCA 10 [34].
As to contention 3, the appellants submit that their trial was unfair because of the prejudicial effect of pre‑trial publicity and, in particular, pre‑trial publicity relating to Mr Cookson in which their names were linked.
In the lever‑arch file, the appellants have included a printout of a Google search made on 28 July 2014 on the subject 'loriana crews' [sic] which contains links to various media reports which apparently link the appellants to Mr Cookson. The file also includes printouts of some online media reports concerning Mr Cookson and the appellants. The appellants have highlighted an online report published on the website WAToday (and possibly on other websites) in which it was erroneously stated that the appellants were housemates of Mr Cookson. The appellants also point to the reference to the case of Neumann v The State of Western Australia in the comparative sentencing tables published by the Director of Public Prosecutions which they claim is inaccurate.
A highly relevant factor weighing against the success of contention 3 is that neither defence counsel sought a stay of the proceedings or an adjournment of the trial on the basis of prejudicial pre‑trial publicity. The trial record reveals that defence counsel's concern was to ensure that it was made clear to the jury that the deaths of Mr Cookson and Mr Cameron were unrelated to each other and unrelated to either of the appellants. The learned trial judge said he wished 'to minimise the risks of speculation and particularly speculation about the way in which [either Cookson or Cameron] met their death and any potential connection with the accused' (ts 523). As a result, counsel for both the appellants and the prosecutor were content for one of the principal prosecution witnesses, Detective Magee, to give evidence in these terms:
Now, I just want to ask you some questions in relation to some other people. Now, are you able to confirm whether not it's the case that Mr Bernd Neumann, Mr John Cameron and Mr Stephen Cookson were all charged with offences arising out of this investigation?‑‑‑Yes.
And can you confirm that Mr Neumann pleaded guilty to charges arising out of the investigation?‑‑‑Yes.
Are you able to confirm that Mr Cameron committed suicide after being charges, is that correct?‑‑‑That's correct.
Are you able to confirm that Mr Cookson has apparently been murdered since being charged?‑‑‑That's correct.
And are you able to confirm that it is the case that Mr Cameron's death and Mr Cookson's death are unrelated‑‑‑Yes.
And are you able to confirm that it's the case that neither Ms Tresnjo nor Ms Crews had anything to do with Mr Cookson's death?‑‑‑That's correct (ts 540).
At the outset of the trial, his Honour directed the jury to consider the case only on the evidence produced in court and not to conduct independent research or use social media (ts 394 ‑ 395, 434). In the course of his summing up, his Honour instructed the jury:
(a)not 'to wonder' about the events or people referred to in the trial (ts 1547);
(b)to have strict regard only to the evidence and nothing else (ts 1547, 1603 ‑ 1604); and
(c)to assess the evidence dispassionately without prejudice or sympathy (ts 1603).
No exception was taken to these directions. It is assumed that the jury will faithfully apply them: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414.
Having regard to what occurred at trial, any risk of an unfair trial because of pre‑trial publicity, particularly publicity relating to Mr Cookson and the appellants and any prejudice that it might cause, was properly dealt with. It is not reasonably arguable that the appellants did not receive a fair trial because of pre‑trial publicity.
Contention 3 has no reasonable prospect of succeeding.
Contention 4 - Disclosure
The principal complaint that the appellants have concerning disclosure by the prosecution is that they were not provided with full disclosure of all the covert surveillance product until 'four weeks before trial'. Further, part of it was encrypted and could not be read for another two weeks. As a result, it is said, they were unable to properly prepare for trial or to give adequate instructions to their counsel.
The appellants also complain that because the State adduced only a small proportion of the total amount of covert surveillance product, the jury was presented with a misleading picture of their alleged involvement in the offences. In this regard, the appellants allege that there were in total approximately 9,000 intercepted communications (in the trial there was reference to 6,000 communications), and that only approximately 250 of them were adduced by the State at trial.
The appellants further allege that there was a miscarriage of justice because the prosecution failed to disclose an agreement entered into on behalf of MediVet Pty Ltd by Shaneel Khan and Mr Neumann (the MediVet agreement).
The appellants were committed for trial in the District Court on 17 February 2012 by the Magistrates Court. The prosecution brief was, from the outset, extensive (approximately 2,000 pages in length) and was added to on a number of occasions prior to trial. The bulk of the written brief comprised transcripts of some, but not all, of the telephone intercept and surveillance device product. In addition to the written brief, the appellants were provided with discs that contained the telephone intercept and surveillance device product. It is not exactly clear when that occurred, but the volume of this material was raised at a directions hearing on 14 December 2012. By that time, the appellants had each retained the counsel who would ultimately represent them at trial.
Ms Crews' lawyer, in a listing certificate dated 30 January 2013, certified that all defence requests for further disclosure had been complied with. Ms Tresnjo's lawyer certified on 31 January 2013 that some materials had not been handed to her by Ms Tresnjo's previous solicitors. No complaint was made about the prosecution in this regard.
At a directions hearing on 31 January 2013, the appellants raised, not the volume of the covert surveillance material or any inability to deal with it, but the question of precisely what telephone intercept and surveillance device product would be relied upon by the State at trial. Martino CJDC suggested that the parties confer on the issue and if the conferral was unsuccessful, the matter could be brought back before him. No further directions hearing on the issue was sought.
No issue associated with disclosure was raised at a lengthy directions hearing before McCann DCJ on 27 and 28 March 2013, in which he dealt with the admissibility of telephone intercept product between the appellants' alleged co‑offenders, to which they were not a party. In preparation for that hearing, the State filed a two volume book of intercept and surveillance device transcripts.
On 9 May 2013, the State filed additional material for inclusion in the prosecution brief. That material included a list of the telephone intercept and surveillance device product which the State intended to rely upon at trial (brief pages 2118 ‑ 2128).
On 23 and 29 May 2013, Martino CJDC and O'Neal DCJ respectively conducted further directions hearings. At neither of these hearings did the appellants' counsel raise any issue of late disclosure, or submit that by reason of the volume of disclosure they had not had the opportunity to examine it with a view to discovering exculpatory material.
No application was made to adjourn the trial for these reasons, either at these directions hearings or at the commencement of the trial on 4 June 2013.
The appellants' claim that they did not receive full disclosure of the telephone intercept and covert surveillance product until 'four weeks before trial' appears misleading. The material was provided to the appellants' legal representatives months before trial. What occurred approximately 'four weeks before trial' was that the State indicated what material they intended to rely upon at trial.
The assertion that the appellants did not have sufficient time to prepare for their trial is falsified by the following. First, the appellants' experienced trial counsel did not complain that they had not been given sufficient time to examine the covert surveillance product. Secondly, as I have already mentioned, the appellants had been served with the discs containing the covert surveillance product many months before trial. Thirdly, relevantly to Ms Tresnjo, her trial counsel, Ms Black, told the learned trial judge on 7 June 2013 that the defence had retained an investigator who had been 'working through all of the [downloaded] material', so that she could be satisfied that there was no other text messages or calls 'that might be of relevance to the defence case' (ts 510). Thus, it appears that Ms Tresnjo's legal advisers had undertaken the task of examining the covert surveillance material with a view to determining what, if any, was favourable to the defence. Fourthly, it may be inferred that counsel for Ms Crews undertook the same kind of process. As part of Ms Crews' defence, her counsel tendered a number of intercepted communications, not adduced as part of the prosecution case, which were alleged to be exculpatory.
Further, even if the appellants received full disclosure of the covert surveillance product 'four weeks before trial', they have not demonstrated any miscarriage of justice which flowed from this. In the lever‑arch file, the appellants refer to material, which they have found on the discs which were disclosed to their legal representatives, which they claim shows their innocence. It is unnecessary to refer to this material. It is sufficient to say that as new evidence, it does not show that the appellants are innocent, nor does it raise a doubt such that this court should conclude that each of them should not have been convicted.
I now turn to the argument that because the State adduced only a small proportion of the total amount of covert surveillance product, the jury were presented with a misleading picture of the appellants' alleged involvement with the offences. This argument has no merit. It is common for the prosecution to adduce only a small proportion of covert surveillance product obtained in an investigation. This is because, as experience often shows, much of the product is irrelevant. In order for trials to run in a just and efficient way, it is necessary for prosecutors to exercise proper judgment as to what material is relevant or irrelevant. The mere fact that only a small percentage of the covert surveillance product is used at trial does not demonstrate in itself unfairness to an accused. An accused person is, of course, at liberty to use this material (and any material not used by the prosecution) to his or her advantage.
It is clear that the process I have just described occurred in the present case. No complaint was made at trial that the State's selection of the material put before the jury was in any way unfair. Ms Crews in particular adduced evidence in her case of covert surveillance product which she claimed was advantageous to her. There is nothing before this court which could reasonably support the argument that the prosecution acted unfairly in their selection of the covert surveillance material.
I now turn to the alleged failure to disclose the MediVet agreement. The copy of this document which the appellants provided to this court in the lever‑arch file under the tab 'Ground 4', is an undated photocopy of an agreement entitled 'Non‑Disclosure - Non‑Circumvention Agreement', the subject matter of which is the intellectual property rights of MediVet Pty Ltd. The agreement appears to be signed by Shaneel Khan and Mr Neumann.
Mr Khan was a prosecution witness at trial. In the course of his evidence he denied that there was any agreement between MediVet and Mr Neumann. The MediVet agreement would appear to contradict this evidence. The appellants' claim is that the prosecution had the agreement but failed to disclose it.
There is no evidence to support the assertion that the prosecution had a copy of the MediVet agreement. What is clear is that Ms Crews had a copy of the agreement prior to trial. In fact, the existence of the agreement was drawn to the attention of Ms Crews' counsel prior to trial. Ms Crews states in her appellant's case filed 13 March 2014 that her counsel did not use the document because 'it looks dodgy'. Plainly, defence counsel made a deliberate forensic decision not to cross‑examine Mr Khan using the agreement. Having perused the agreement, it is impossible to say that defence counsel's forensic decision was not objectively justified.
For all these reasons, contention 4 has no reasonable prospect of success.
Contention 5 - The admissibility of the telephone intercept and surveillance device product
A crucial part of the cases against each appellant comprised intercepted telephone conversations and SMS messages as well as audio and visual recordings made from surveillance devices installed in the South Perth apartment. For convenience, I will refer to all of this material as 'covert surveillance product'.
The appellants alleged that the covert surveillance product was inadmissible. Insofar as they allege that the learned trial judge erred in law in failing to rule this material inadmissible, that allegation cannot be sustained. His Honour was not asked to rule on the admissibility of the covert surveillance product. To the contrary, the appellants' counsel expressly took no issue as to its admissibility. In these circumstances, it cannot be said that his Honour made a wrong decision on a question of law: s 30(3)(b) of the Criminal Appeals Act 2004 (WA) and R v Soma [2003] HCA 13; (2003) 212 CLR 299 [42]. The only conceivable ground upon which the appellants can succeed on this contention is to establish a miscarriage of justice. Given the absence of any objection this is a difficult allegation to sustain.
The appellants' submissions in respect of this contention verge on the incoherent. It appears that their complaints are as follows:
(1)The warrants for the intercepted telephone services issued under the Telecommunications (Interception and Access) Act 1979 (Cth) were somehow unlawful.
(2)The product obtained from the surveillance devices in the South Perth apartment was inadmissible because any warrants for those devices issued under the Surveillance Devices Act 1998 (WA) were not tendered in evidence.
(3)Any material recorded by the surveillance devices in the South Perth apartment which involved the recording of telephone conversations should have been subject to a 'stand alone' warrant under the Telecommunications (Interception and Access) Act.
(4)The covert surveillance product was too difficult for the jury to follow or properly understand.
(5)The covert surveillance product may have been 'interfered with' or 'doctored'.
None of these arguments can be reasonably sustained.
As to (1), the police obtained a series of warrants under the Telecommunications (Interception and Access) Act in respect of certain mobile telephone services used by Mr Neumann, Mr Cookson, Mr Cameron and Ms Tresnjo. It appears that no mobile telephone service used by Ms Crews was the subject of a warrant, although conversations and text messages in which she participated emanated from the intercepted telephone services of Messrs Neumann, Cookson and Cameron.
Evidence was also adduced as to the subscriber details of each intercepted telephone service. Generally speaking, the subscriber details were false. Detective Magee gave unchallenged evidence as to the true user of each of the intercepted telephone services. The warrants were tendered through Detective Magee without objection: exhibits 1 ‑ 18. There is no evident illegality in respect of the warrants. The assertion that they are illegal is no more than that. Neither appellant has proffered anything which seriously calls into question the legality of the warrants obtained under the Telecommunications (Interception and Access) Act.
As to (2), the legal authority for the WA Police to install the listening device and optical surveillance device in the South Perth apartment derives from the Surveillance Devices Act. Such devices may be installed in premises under the authority of a warrant issued under that Act. The prosecution did not adduce evidence of the warrants for the devices installed at the South Perth apartment. However, this is not to say that such warrants did not exist, nor that there was any illegality attached to them.
A perusal of the prosecution brief reveals that Detective Magee, in one of his depositions, referred by number to warrants that he obtained under the Surveillance Devices Act. Prior to trial, Ms Crews and her counsel wrote to the Office of the Director of Public Prosecutions requesting copies of these warrants. In reply, the DPP asserted that the prosecution could not supply a copy of the warrants by reason of s 23(2)(c) of the Surveillance Devices Act which reads:
23. Confidentiality
...
(2)The following material must not be made available by a court for search by any person except on the direction of a judge, or in the case of an application made under this Part to a magistrate, of the Chief Magistrate -
...
(c)any warrant issued on such an application;
It is arguable that the prosecutor was incorrect to refuse the defence request by reason of s 23(2)(c) of the Surveillance Devices Act. Be that as it may, the issue was not taken up again by the appellants. It may be inferred that the appellants' legal advisers, having regard to Detective Magee's deposition, accepted that the warrants had been issued and had been lawfully obtained. There is no evidence which would seriously call into question the existence and lawfulness of the warrants.
In all of these circumstances, it cannot reasonably be said that the appellants have established that there was a miscarriage of justice because the warrants in connection with the devices installed at the South Perth apartment were not tendered at trial.
As to (3), insofar as the devices installed in the South Perth apartment recorded individuals speaking on the telephone, those conversations were lawfully recorded by those devices. Contrary to the submission of the appellants, there was no need for the conversations to be the subject of 'stand alone' warrants being obtained under the Telecommunications (Interception and Access) Act.
As to (4), there is nothing to the argument that the covert surveillance product was too difficult for the jury to follow or properly understand. The material was put before the jury over days of evidence and analysed in detail by counsel in their closing addresses. Each juror had a book which contained transcripts of the relevant material. His Honour summed up the cases in detail. The material was not too difficult to follow or comprehend.
As to (5), there is no basis in fact to the claim that the covert surveillance product was somehow 'interfered with' or 'doctored'. Some criticism has been made of the accuracy of the transcripts of some of the product. It was well appreciated at trial that there had been some transcription errors. The jury were directed that the transcripts were not the primary evidence and were to be used only as an aid to their comprehension of the recorded material. The appellants take objection to the use of software employed by the police to enhance the amplification of some of the intercepted material. This was done without objection by the appellants' counsel and cannot, in the circumstances, give rise to a miscarriage of justice. Nothing put forward by the appellants to this court goes close to substantiating their allegations that the covert surveillance product was 'interfered with' or 'doctored'.
Contention 6 - The alleged incompetence of defence counsel
The appellants submit that their counsel at trial were incompetent in the conduct of their defence and, as a result, there has been a miscarriage of justice.
The appellants' submissions on this point centre upon defence counsel's failure to challenge the admissibility of the covert surveillance product. As the covert surveillance product was admissible, neither of them have suffered a miscarriage of justice.
Ms Crews made some specific criticisms of her counsel for not making various submissions in his closing addresses. The points which Ms Crews says were not made by her counsel were, in fact, in broad terms, made in the course of her counsel's closing address. What points (and if a point is made, what emphasis is given to it) are matters for forensic judgment. It is clear on an objective analysis of Ms Crews' counsel's closing address that he exercised appropriate forensic judgment. It cannot reasonably be argued that his alleged 'failures', either individually or in combination, have given rise to a miscarriage of justice.
There can be no legitimate complaint about the conduct of defence counsel generally. The record of proceedings reveals that counsel acted properly to narrow the issues to be decided and to facilitate the proof of factual matters not in dispute. Each exercised appropriate forensic judgment in these matters. While each appellant, with the benefit of hindsight, believes their case should have been conducted differently, that does not amount to a miscarriage of justice as nothing counsel did has deprived the appellants of a fair trial according to law: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124.
Contention 6 has no reasonable prospect of succeeding.
Contention 7 - The summing up
The appellants allege that the learned trial judge's summing up was 'biased'. By 'biased' I take the appellants to be alleging that the summing up was unbalanced in favour of the State. His Honour explained to the jury the cases for the prosecution and the appellants. The separate case for each appellant was explained to the jury accurately and in detail (ts 1580 ‑ 1596). It was not unbalanced. Experienced trial counsel did not, at the conclusion of the summing up, suggest that it was in any way unbalanced or unfair. Contention 7 has no reasonable prospect of succeeding.
Contention 8 - The prosecution's alleged 'deception' of the jury
The appellants contend that the jury was 'deceived' because the prosecution failed to reveal that Mr Cameron acted as a 'police agent' when he delivered the drugs the subject of count 2 on the indictment, thereby entrapping the appellants. There is simply no factual basis to this alleged deception. The submission amounts to no more than a baseless theory. There is no evidence that Mr Cameron was a 'police agent' or that he 'entrapped' the appellants. Contention 8 has no reasonable prospect of succeeding.
Contention 9 - The indictment
The appellants submit that there was a miscarriage of justice because count 1 charged them with possession of methylamphetamine with intent to sell or supply to another, whereas in relation to the same set of circumstances Mr Neumann was charged with a conspiracy. There is no merit to this allegation. While I recognise that the maximum penalty under the Misuse of Drugs Act for the possession charge is greater than the maximum penalty for the conspiracy charge, the fact that the appellants have been charged with the substantive offence does not give rise to any miscarriage of justice. Contention 9 has no reasonable prospect of succeeding.
Ms Crews' separate contention
Ms Crews alleges that the prosecutor, in her cross‑examination of Ms Crews, asked inadmissible questions about Mr Neumann's past drug offences.
The relevant exchange is in these terms:
In - in 2010, you - you didn't believe Mr Neumann dealt in drugs?‑‑‑No.
What about prior to 2010?‑‑‑Not in the time that I have known him.
What about before you knew him?‑‑‑Well, he told me that he had been to prison and that was his - what his charge was. But - and that was right at the beginning in the first six months that I had met him and he assured me he wasn't that person any more.
So Mr Neumann told you he had been to prison for dealing drugs?‑‑‑Yes (ts 1266).
It was Ms Crews' case that she was unaware that Mr Neumann was dealing in drugs in 2010. In other words, Ms Crews put into issue her state of mind as to Mr Neumann's involvement in illicit drugs. The cross‑examination now objected to was directed to this topic. Ms Crews' disclosure that Mr Neumann had told her that he had been to prison for dealing drugs in the past was relevant to her state of mind in 2010, a matter her counsel conceded at trial (ts 1597 ‑ 1599).
Ms Crews' contention has no reasonable prospects of success.
Ms Tresnjo's separate contentions
I will now deal with the contentions of Ms Tresnjo alone.
Ms Tresnjo submitted that the learned trial judge erred in law in his direction to the jury that it did not have to be unanimous as to whether an appellant was guilty because she was part of a joint criminal purpose or because she aided Mr Neumann.
The relevant direction is as follows:
If you all agree upon a verdict in this case then that's the verdict. It has to be a unanimous verdict, which means that you all must agree on it. Now, let me explain this. The State has, of course, put its case against each accused on the two alternative bases that I've explained to you, although it must be obvious that there's a real overlap between the two positions. It's not necessary that you all agree that it was one of those alternatives, joint criminal enterprise or the other aiding. You don't all have to be unanimous about whether it was one of those. It is necessary that you be unanimous that the offence was committed in one of those two ways (ts 1604).
Counsel for Ms Tresnjo initially took exception to this direction, but did not persist with it, saying that she was 'comfortable' with the direction (ts 1611).
The law in relation to the path of unanimity for a jury's verdict where liability rests on the same or similar facts was explained by McLure JA (as her Honour then was) in Michaels v The State of Western Australia [2009] WASCA 174 in these terms ([10] ‑ [12]):
Where there are alternative legal formulations of liability which rest on the same or a substantially similar factual foundation and which do not involve materially different issues or consequences, the jury only has to be unanimous in the verdict; it is not necessary that all members of the jury arrive at the same verdict by the same pathway: Mouritz v The State of Western Australia [2006] WASCA 165 [9] - [17], [28]; R v Leivers [1999] 1 Qd R 649, 662; R v Cramp (1999) 30 MVR 9 [65] - [68]. The principle applies to alternative offences (Cramp) and alternative bases of responsibility for a single offence (Leivers and the numerous authorities considered in Cramp at [31] - [43]).
In Leivers the prosecution formulated its case against the appellants on a charge of murder on the basis that the appellants were involved in the prosecution of a common purpose (s 8 of the Criminal Code (Qld)) or alternatively aided the commission of the offence (s 7(1)(c) of the Criminal Code (Qld)). The trial judge directed the jury that they might reach the same conclusion by different routes but in the end they must all agree with the verdict which was announced. The appellants contended that was a misdirection. Dismissing that contention, the court said:
[G]uilt by reference to s 7(1)(c) required participation in [the victim's] murder by the appellant in question with knowledge that [the victim] was to be murdered; guilt by reference to s 8 required participation with knowledge that [the victim] was to be severely beaten and with his murder objectively a probable consequence of that beating. The same activities by each appellant were sufficient for either purpose. The essential issue raised for consideration is whether the jury could properly convict either of the appellants if some members concluded that that appellant knew that [the victim] was to be murdered while other jury members concluded that that appellant believed that only a severe beating (with murder as its probable consequence) was intended … A conclusion of guilt by virtue of s 7(1)(c) necessarily subsumed the less serious findings which were necessary to a conclusion of guilt by virtue of s 8. Guilt on the basis of s 8 involved an intention that [the victim] receive a beating which had murder as its objective probable consequence. That was plainly less than was necessary for guilt under s 7(1)(c), which involved knowledge that [the victim's] beating was intended to cause his death or grievous bodily harm (663).
The court in Cramp drew a distinction between alternative factual bases of liability (where unanimity is required) and alternative legal formulations of liability based on the same or substantially the same facts (where unanimity on other than the verdict is not required). Roberts-Smith JA in Mouritz referred with approval to a practical test of this distinction. Roberts-Smith JA said:
During the course of their judgment [in Cramp] their Honours reviewed a wide range of cases decided in Australia and other common law jurisdictions. They referred to the opinion of Professor Sir John Smith who, in his paper 'Satisfying the Jury' [1988] Crim LR 335 at 344, proposes a principle of general application that when the prosecution allege more than one factual basis for the crime charged and it is not possible to say 'if it was not the one, then it must have been the other' the jury should always be directed that they must all be satisfied as to the one basis or all satisfied as to the other, or both [15].
In the present case, the alternative legal formulations of liability in this case - joint criminal enterprise and aiding - were based on the same or substantially the same facts. Accordingly, having regard to the authority of Michaels, his Honour's directions to the jury were correct.
For these reasons, there is no merit in Ms Tresnjo's first contention.
Contention 2 - Ms Tresnjo - the use of the word 'transitory'
After the summing up was delivered and the jury sent out to deliberate there was, as I have already said, some dialogue between counsel for Ms Tresnjo concerning the direction the subject of the contention with which I have just dealt. In this exchange, his Honour, while musing as to the practical difference between joint criminal enterprise and aiding on the facts of the present case, suggested that one might be more 'transitory' than the other (ts 1607). Nothing more than this was said about the matter. It was merely his Honour thinking out aloud in the context of a discussion with counsel in the absence of the jury. It had no impact upon the jury's deliberations and could not conceivably give rise to a miscarriage of justice.
Ms Tresnjo's second contention has no merit.
Other contentions
I have dealt with what I perceive to be the main contentions of the appellants. However, in the course of the appellants' written submissions, various allegations have been made which can be briefly dealt with.
Each appellant alleges that there has been a 'cover up' by the police and the Director of Public Prosecutions. These allegations are no more than assertions. There is no factual basis to them.
The appellants allege that the jury was 'under extreme pressure' to arrive at their verdicts. According to Ms Crews, this has been made known to her 'from outside sources'. Ms Crews has made no attempt to identify these so‑called 'outside sources' or the information they apparently have. Ms Crews also draws attention to the fact that the jury deliberated for 'just over two hours', the suggestion being that this period of deliberation was too short for the jury to have properly considered the case.
There is no factual basis to the allegation that the jury were 'under extreme pressure' to deliver verdicts. This court cannot act upon hearsay information given to Ms Crews by unknown 'outside sources'. There is nothing in the trial record to support the allegation, including the length of time the jury took to reach their verdicts. The cases against the appellants were strong. It is hardly surprising that the deliberations of the jury were not protracted.
The appellants and, in particular, Ms Crews, have raised a question about the accuracy of the trial transcript. The submissions with respect to this are, to put it neutrally, very unusual. It is not suggested that the trial transcript was inaccurately transcribed. Ms Crews suggests that somehow the electronic record of the trial has been manipulated to produce an inaccurate transcript. Ms Crews bases this on her recollection of what was said in the trial. This is a completely insufficient basis for the appellants' and, in particular, Ms Crews', allegations. A perusal of the transcript available to this court reveals that there was nothing said at the trial to support the allegation. One would have thought that if the transcript was materially inaccurate or had been manipulated in the way suggested by the appellants, it would have been evident to all who were present. There is no basis whatever for this contention.
Ms Crews' application filed 14 April 2014
On 14 April 2014, Ms Crews filed an application for an 'unedited' audio recording of the trial (and her sentencing proceedings). The statutory declaration in support of the application dated 1 April 2014 states that the appellant wishes to have the recordings examined by 'an independent audio engineer or analyst' for the purpose:
… of [investigating] discrepancies that exist between what was verbally stated as to what has been transcribed is a deliberate intent to mislead persons who need to rely upon transcriptions to arrive upon a decision whether or not grounds to appeal against conviction exist.
For the reasons that I have just explained, there is no proper factual basis upon which to reasonably suspect that the transcript of the trial has been altered. Accordingly, the application must be refused.
Application to adduce additional evidence
Earlier in these reasons I referred to the fact that after the hearing on 24 July 2014, each appellant applied to adduce additional evidence. That additional evidence was contained in the lever‑arch file delivered to the court on 21 August 2014. None of the material is capable of giving rise to a reasonable argument that the appellants have suffered a miscarriage of justice.
I have carefully examined the contents of the lever‑arch file. Some emphasis was given to three DVDs, being disk 8, recorded on 15 September 2010, disk 31, recorded on 22 September 2010 and disk 6.1, headed 'computer crime squad 16:37 10/9/10 - 10/9/10, disk 1'. The first two disks are very long indeed - disk 8 is 7 1/2 hours long and disk 31 is almost 5 hours. All of this material is new evidence. It does not satisfy the test laid down in Lawless v The Queen.
The additional evidence in the lever‑arch file does not reveal a reasonable possibility that there has been a miscarriage of justice. Accordingly, the application to adduce the evidence should be dismissed.
Conclusion and orders
None of the contentions and, accordingly, none of the proposed grounds of appeal have any reasonable prospects of succeeding. In each appeal, leave to appeal on all grounds should be refused and the appeal dismissed. I would also dismiss Ms Crews' application filed 14 April 2014 and the application of the appellants to adduce the evidence contained in the lever‑arch file.
SCHEDULE OF CONTENTS OF LEVER-ARCH FILE
1)Application in CACR 183/2013 to adduce additional evidence and supporting affidavit of Loriana Crews, dated 13 August 2014.
2)Application in CACR 179/2013 to adduce additional evidence and supporting affidavit of Lejla Tresnjo, dated 13 August 2014.
3)Untitled news article, undated.
4)Letter from Trevor Scott to Loriana Crews, undated.
5)Email from Anthony Eyers to Loriana Crews, dated 18 January 2013.
6)Email from Anthony Eyers to Aleisha Orr, dated 18 January 2013.
7)Email from Anthony Eyers to Loriana Crews, dated 18 January 2013.
8)Email from Anthony Eyers to Loriana Crews, dated 19 January 2013.
9)Weekend West, 'Man held on murder charge', dated 19 January 2013.
10)Email from Loriana Crews to Anthony Eyers, dated 24 January 2013.
11)Email from Paul Burke to Loriana Crews, dated 24 January 2013.
12)Letter from Bill Kantares to Loriana Crews, dated 25 January 2013.
13)Email from Anthony Eyers to Loriana Crews, dated 25 January 2013.
14)The West Australian, 'Drug gang all jailed or dead', dated 4 November 2013.
15)Herald Sun, 'Stephen Ramon Cookson's co-accused please [sic] innocence', dated 24 July 2014.
16)Google search of 'loriana crews', dated 28 July 2014.
17)PerthNow, 'Crown drops Stephen Cookson drug charge', dated 28 July 2014.
18)Email containing web search, dated 5 July 2013.
19)Annotated excerpt from comparative sentencing table produced by Office of the Director of Public Prosecutions (WA), 'Possess methylamphetamine/amphetamine with intent to sell or supply', dated 28 May 2013.
20)Annotated excerpt from prosecution brief, 'Statement of Andrew John Sevelj', undated.
21)Annotated excerpt from statement of material facts for Mr Bernd Neumann, undated.
22)Letter from Loriana Crews to unidentified District Court Judge regarding IND/889/2011, dated 16 April 2012.
23)Letter from Loriana Crews to Laura Christian, dated 14 May 2012.
24)Letter from Loriana Crews to Laura Christian, dated 6 June 2012.
25)Email from Anthony Eyers to Laura Christian, dated 12 December 2012.
26)Email from Anthony Eyers to Loriana Crews, dated 13 December 2012.
27)Email from Anthony Eyers to Loriana Crews, dated 13 December 2012.
28)Annotated excerpt from prosecution brief, 'Statement of Roy Michael Morrish', undated.
29)AccessData, 'AccessData FTK Imager - User Guide', undated.
30)Computer disk, 'FTK Imager Program and User Manuel [sic] for Loriana Crews', undated.
31)Western Australia Police Computer Crime Squad, 'Analysis Report: Task 69113', dated 3 May 2013.
32)Suicide note of Mr John Cameron, dated 22 November 2010.
33)Copy, 'Non-Disclosure - Non-Circumvention Agreement: Intellectual Property (IP) Rights', undated.
34)Annotated Western Australia Police, 'Mobile Phone Processing', dated 11 October 2010.
35)Western Australia Police Computer Crime Squad AV Unit computer disk, 'Operation Gainsville Disc 1: 16:37 10/9/10 ‑ 10/9/10'.
36)Western Australia Police Computer Crime Squad AV Unit computer disk, 'Operation Gainsville Disc 8: 11:22 15/9/10 ‑ 18:53 15/9/10'.
37)Western Australia Police Computer Crime Squad AV Unit computer disk, 'Operation Gainsville Disc 31: 15:07 22/9/10 ‑ 20:04 22/9/10'.
38)'Warrant issue details', undated.
39)Bundle of warrants issued under the Telecommunications (Interception and Access) Act 1979 (Cth), various dates.
40)Statement of Optus Administration Pty Limited Liaison Officer.
41)Western Australia Police Telecommunications Interception Unit State Intelligence Division, 'Criminal Law-enforcement Agency - Authorisation and Notification for Access to Prospective Information or Documents', various dates.
42)Bundle of Western Australia Police, 'Mobile Phone Processing', various dates.
43)Western Australia Police, 'Statement of Detective Senior Constable Paul Grace' dated 28 September 2010.
44)Western Australia Police computer disk, dated 24 September 2010.
45)Annotated excerpt from prosecution brief, 'Statement of Alan Connor Magee', undated.
46)Letter from Laura Christian to Associate to Martino CJDC enclosing 'Notice of Discontinuance dated 14 February 2012', dated 15 February 2012.
47)Email from Laura Christian to Anthony Eyers, dated 1 June 2012.
HALL J: I agree with Mazza JA.
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