R v Watkins and Spry[2014] QDC 277

DISTRICT COURT OF QUEENSLAND

1. [1]
   I heard the pre-trial applications together on 23 October 2014. By consent, I have been asked to determine one of the three issues first and discretely, so that Mr Collins (for Watkins) and Ms McKinnon (for Spry) may be better informed as to whether to argue one or other or both or neither of the two parts of the application. This issue is about particulars of the charge as it affects each of the two applicants.

The charge

2. [2]
   Watkins and Spry are charged with divers others, with the offence of attempting to pervert the course of justice. That offence is a discrete and substantive offence: that is, it does not involve the “attempt” provision in section 4 of the Criminal Code (Qld): R v Meisner (1995) 184 CLR 132; Hugo v R [2000] WASCA 199; Rogerson v R (1992) 107 ALR 225.

3. [3]
   The charge (section 140 Criminal Code (Qld)) is as follows:

“That between the 27^th day of July, 2012 and the 15^th day of December, 2012 at Townsville in the State of Queensland, Powhiri Leo Tanerau-Love, Tahu Ricky Tanerau, Tania Jayne Tanerau-Love, Daniel Patrick Watkins, Tennille Courtenay Spry and Shaun Lee Price attempted by trying to create false evidence in a criminal proceeding to pervert the course of justice”. 

4. [4]
   On 9 May 2014 all of the accused were arraigned. Powhiri Tanerau-Love and Tahu Tanerau pleaded guilty and were subsequently sentenced on 27 June 2014. The other accused persons had entered pleas of not guilty.

5. [5]
   The offence arises out of drug charges made against Powhiri Leo Tanerau-Love and Tahu Ricky Tanerau. The gravamen of the alleged offence is that the applicants in some way attempted to persuade another person (Price) and/or another person (one Nugent) to claim ownership of the drugs to assist each of to avoid prosecution for the commission of the drug offences.

The applications

6. [6]
   Mr Collins and Ms McKinnon brought the pre-trial application on three bases: to seek particulars of the offence in so far as it implicates each of them; to seek separate trials; and to exclude evidence of covertly recorded conversations that the prosecution allege implicate each of them in the commission of the offence.

7. [7]
   The prosecution case is predicated on section 7 of the Criminal Code (Qld) only.  Section 8 is expressly not relied on by the prosecution. 

8. [8]
   The applicants say that the particulars provided by the prosecution are inadequate. Mr Robson for the Crown says that what has been sought by the applicants is evidence, not particulars, and that the case against each of the accused is adequately particularised.

The prosecution case against Watkins

9. [9]
   In so far as Watkins is concerned, the offence involves attempting to have the witness Nugent falsely claim ownership of the relevant drugs and/or procuring the accused Price to falsely claim ownership of the relevant drugs.

10. [10]
    According to the statement of witness of Nugent, an arrangement was made for Watkins to take her to a solicitor’s office. Watkins took her to a solicitor in Charters Towers Road and she told the solicitor she wanted to take the blame for the drugs, but that the drugs were not hers. The solicitor understandably refused to further engage in this conversation and informed her that she and Tanerau-Love would only get themselves into more trouble. Nugent says that a few days later that she was taken by Watkins to another solicitor’s office on Flinders Street and again not surprisingly the same outcome occurred. Specific particulars were provided by the prosecution in respect of Watkins.

11. [11]
    Ms Nugent’s statement to police, apart from her account of direct involvement in the drug dealing at about the time of the police raid that caught Powhiri Tanerau-Love and others at a motel, otherwise – so far as is relevant – comprises her saying, “I was told by people I know …” or similar expressions, that Powhiri Tanerau-Love was trying to get one or more other persons to “take the blame and say the bum bag with the drugs in it belong to them”.

12. [12]
    She also said that:

“I remember talking to Powhiri Tanerau-Love on the telephone a couple of times while I was at Natalie Taylor’s house. I was told not to talk about what he had asked me to do because he was worried they would be listening to his calls. While staying with Natalie Taylor it was arranged for Danny Watkins to take me to the solicitor’s office to make the statement. I was told that Danny was looking after the money that Powhiri was going to pay me and gave me $500 and one gram of “gear” on the first time that he took me to the solicitors. Danny took me to a solicitors’ office on Charters Towers Road, near the United Service Station, across from the Ford dealer. Danny was told which solicitors’ office to go to, but didn’t go in with me when we got there. When I told the solicitor that I wanted to take the blame for Powhiri’s drugs, but they weren’t mine, the solicitor told me he wouldn’t do it and that it wouldn’t help because I would get locked up and Powhiri would end up staying in jail”,

and

“A couple of days later, Danny took me to a different solicitor who has an office on Flinders Street.  I don’t remember the solicitor’s name, but when I told him I wanted to give a statement and take the blame for the drugs found on Powhiri, this solicitor told me he wouldn’t do it either.”

Particulars: Watkins

13. [13]
    The particulars provided by the DPP in correspondence dated 21 May 2014 were as follows:

“The basis of the attempt to pervert the course of justice count is that Daniel Patrick Watkins and others attempted to thwart the prosecution case against Powhiri Tanerau-Love concerning an offence involving dangerous drugs on 18 July 2012. The offending involved attempting to have the witness, Nugent, falsely claim ownership of the relevant drugs and/or procuring the accused, Price, to falsely claim ownership of the relevant drugs, or in the case of the accused, Price, attempting to claim ownership of the relevant drugs. 

With respect to the acts or admissions relied upon in relation to your client, the Crown at the trial would rely upon all of the evidence on the brief to establish the existence and details of the plan to procure a false statement. 

With respect to the evidence to show your client’s involvement in the above plan, the Crown would rely on the following …”

14. [14]
    There followed a series of references to acts or omissions, to the following effect: that Nugent’s stated that Watkins took her to the solicitor’s office to make a statement and subsequently took her to another solicitor to again attempt to give a statement; that she was offered money and drugs if she did so; an alleged admission by Watkins that he “wouldn’t have done it if he knew it was illegal” in the context of the investigating police officer’s explanation of what would be discussed in a record of interview, the interview then being declined by Watkins). There were six telephone calls in which reference is made to “Danny” and to various acts intended to be done by one person or another.

15. [15]
    The correspondence also refers to ten other telephone calls where the Crown says that an inference can be drawn that Watkins is being referred to in them. All of the telephone calls are drawn from a very large volume of telephone calls between many different people that are said to form part of the Crown case, in its generic sense.

The prosecution case against Spry

16. [16]
    The case against Spry also relies upon the same generic case against Watkins. However, it is different insofar as the source of the allegations are concerned. Ms McKinnon adopted the general submissions made by Mr Collins in the hearing.

17. [17]
    However, she submitted that there was need for the prosecution to establish that Spry’s knew that Nugent or Price were not the true owner of the drugs. There was no involvement in visits to solicitors. She is the subject of telephone interceptions in conversations originating from or going to the Townsville Correctional Centre. There appears to be no actual physical act in which she is said to have done anything.

The involvement of Price

18. [18]
    In December 2012 a local lawyer sent an email to the police with a letter attachment purported to be signed by Price. The content of the letter was to the effect that the drugs located in the bag found on Powhiri Tanerau-Love belonged to Price. The letter was provided to the investigating officer Plain Clothes Constable Hilton.

19. [19]
    Hilton made arrangements for Price to be interviewed a couple of days later in mid-December 2012. At about that time Hilton received information about the telephone call intercepts which indicated that Powhiri Tanerau-Love was attempting to get some unknown person to claim responsibility for the drug offence in exchange for cash or property. This lead to an adjournment of a committal proceedings for the purpose of further investigations.

20. [20]
    The telephone call intercepts apparently show Powhiri Tanerau-Love and Tahu Tanerau speaking to other persons outside the prison. The calls are to a large extent discrete and conducted in veiled language.

21. [21]
    Price eventually gave a statement to police and then an interview which he claimed responsibility for the drugs found in the bum bag at the motel. However, he was not charged with the drug offence by police as they did not believe his version of events.

Observation

22. [22]
    The involvement of the lawyer in this process is on any view of the matter highly questionable from an ethical and professional point of view, at least on the information that I have available to me on the material provided for the purpose of this application. However, that is an observation only and is not material to the applications or to the state of mind of the police in not charging Price with an offence arising out of the circumstances described.

Particulars: Spry

23. [23]
    With respect to Spry, the particulars are contained in an email communication from the DPP dated 10 September 2014 as follows:

“The basis of the attempt to pervert the course of justice count is that the offenders attempted to thwart the prosecution case against Powhiri Tanerau-Love concerning an offence involving the dangerous drugs on 18 July 2012. The offending involves attempting to have the witness, Nugent falsely claim ownership of the relevant drugs and/or procuring the accused, Price, to falsely claim ownership of the relevant drugs, or in the case of the accused, Price, attempting to claim ownership of the relevant drugs.” 

The phone call intercepts

24. [24]
    The prosecution submitted that the content of the phone calls (taken with all the other evidence) clearly suggests a common unlawful purpose amongst Powhiri Tanerau Love, Tahu Tanerau Love and others (inferentially including Watkins and Spry) to attempt to arrange other persons (specifically Nugent and later Price) to falsely claim responsibility for the relevant drugs.

Observation

25. [25]
    That is as I understand matters the extent of the particulars provided to each of the applicants, which are described as being inadequate by each of their counsel and asserted as being sufficient to inform the applicants of the case they have to meet, so far as the Crown is concerned.

Submissions

Watkins: Mr Collins

26. [26]
    Mr Collins referred to the distinction between “narrative” and “particulars” in the context of their being an allegation of two persons (Price and Nugent), of their each being the subject of importuning to take ownership of the drugs, but where different acts are alleged: a visit to a solicitor by one (Nugent) and the making of a statement to, but rejected by, police by the other (Price).

27. [27]
    Putting aside for the purposes of this application any potential issue of duplicity in the charge, Mr Collins says that the case that his client is to meet is ill-defined. He submitted that the Crown had particularised this case in a broad way “to encapsulate behaviour which [it says] is indicative of perhaps criminal intent without necessarily identifying the act or omission which is said to render the person liable …”

28. [28]
    Mr Collins referred to there being a “risk” that there might be acts which could be regarded as a part of a “course of conduct” that might not amount to or form part of the substantive offence charged, but may merely be part of the narrative that forms the “backdrop” for the alleged offence.

29. [29]
    He says rhetorically, “how is the jury to use such evidence?” For example, the volumes of conversations that do not include the accused as a participant may or may not be admissible on the Tripodi principle unless the case is better off further particularised. 

30. [30]
    Mr Collins submitted that the current particulars do not identify the act or omission constituting the offence charged; they do not identify what the basis of “knowledge” (about assisting the cause of Tanerau-Love) on the part of his client is said to be, that the prosecution must prove; or whether any act or omission (say, one or more phone calls) relates to Price or to Nugent: that is, whether they implicate Price or Nugent.

31. [31]
    He submitted that a jury could be confronted by a number of routes by which they could arrive at guilt and that, by implication, would be unsatisfactory. He referred to the prosecution written submission at paragraphs 3.3 and 3.5. The prosecutor (not Mr Robson, but another DPP lawyer) and the reference to the statements made for police by Price and taken by the police from Nugent, insofar as they were said to implicate Watkins.

Spry: Ms Mckinnon

32. [32]
    Ms McKinnon, in adopting the submissions of Mr Collins, also did so as they related to the alleged recorded conversations relied on by the prosecution and how they or any of them might prove the charge against Spry.

33. [33]
    She submitted that the case against Spry relied on the same “generic particulars” as alleged against Watkins, although Spry is not prima facie alleged to have done any particular act or omission. She is alleged to be implicated by intercepted phone calls to or from the gaol. Ms McKinnon said it was unclear as to what the Crown were alleging constituted her being a party to the offence.

34. [34]
    Miss McKinnon submitted that it was unclear from the particulars what acts by the applicant are relied upon as attracting criminal liability and what evidence establishes the applicant’s knowledge that Nugent or Price were not the true owner of the drugs. The reference to “… what evidence …” I construe as meaning what in this year of, “knowledge” is relied on. It is not a request for “evidence” in the literal sense.

The prosecution: Mr Robson

35. [35]
    Mr Robson says that the case against both accused involves section 7(a), (b), (c) and (d), or any one or more of those.

36. [36]
    Mr Robson has it seems cast the prosecution case on the four alternative bases upon which section 4 is predicated, having concede that “on reflection, it seems to me that any of those four could conceivably apply to the case” and that he “shouldn’t confine” the case. He said that defence counsel should consider how they might pitch their case and that if there was a need for better particularity they should let the prosecution know so that the matter could be considered further.

37. [37]
    He submitted that the criminality alleged was “attempting to pervert the course of justice by trying to create false evidence”; and that the particulars currently provided the “way they’ve tried to create that false evidence”. 

38. [38]
    He said the case was one where “the group [of accused] first directed their attention towards Nugent and when that was unsuccessful [directed their attention] to Price”. 

39. [39]
    He submitted that the particulars, read in conjunction with the indictment, allowed the accused to appreciate the nature of the allegations and to know the nature of the charge each was called upon to meet, in the context of a section 7 case alleging a “course of conduct”. 

Reply: Mr Collins

40. [40]
    Mr Collins replied that the prosecution case involved different “courses of conduct”. In so far as particulars are concerned, reliance was placed on R v R [1998] QCA 83 where Dowsett J was making observations about a case of multiple counts. However, it is arguable that different considerations apply here.

Discussion

41. [41]
    Section 573 of the criminal Code (Qld) provides that the court may, in any case, if it thinks fit, direct particulars to be delivered to an accused of any matter alleged in the indictment.

42. [42]
    One of the functions of particulars is to give the accused sufficient indication of what is alleged against him or her in the alleged commission of the offence. See R v R (supra) at [24]. In R v Chong [2012] QCA 265 at [32] Fryberg J wrote:

“ … In Patel v R, Heydon J wrote:

168.In Johnson v Miller (1937) 59 CLR at 497-498 … Evatt J said:

It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged.

But the importance of particulars does not only lie in relation to questions of inadmissibility for irrelevance. Particulars can also be necessary to enable the defence to make particular forensic judgments. Some concern the cross-examination of prosecution witnesses. Others concern the marshalling and deployment of its own evidence.”

43. [43]
    Counsel referred to Tripodi v R [1961] 104 CLR 1. Tripodi dealt with conspiracy. That is not the charge in this case. However it demonstrates the need for careful particularisation of a charge where several accused are charged and the case depends upon inferences from a generic and broad body of evidence which it is alleged implicates an accused.

44. [44]
    In R v Trifyllis (1998) QCA 416, Chesterman J wrote:

“Where the relevant particulars are not stated in the indictment (because the necessity to do so has been dispensed with by statute) an accused person is entitled to have identified the specific transaction upon which the crown relies and to be appraised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge.”

45. [45]
    Ms McKinnon has referred to “knowledge” in the context of an act tending to pervert the course of justice when she submitted that the particulars against Spry were inadequate. See the observations of Brennan and Toohey JJ in Rogerson v R (1992) 107 ALR 225, at 233-4.

46. [46]
    The sufficiency of particulars in a specific case is a matter of judgment and to a large extent, common sense. Often the accused’ lawyers will have a keen appreciation of what it is that they need in order to organise the defence of their client, even though that may sometimes be beyond what the prosecution are strictly obliged to provide pursuant to s 573 of the Criminal Code (Qld). The trial judge may also have an appreciation in the context of framing directions to the jury. However, the prosecution does not discharge its statutory obligation by providing vague and evasive so-called particulars from behind the shield of the “it is evidence that is being sought” mantra. An intelligent and effective case preparation by a prosecutor should start with the drawing of an appropriate and correct charge, followed by an analysis of what must be proved and how it will be proved. That analysis will identify the particulars of the charge against an accused. There is nothing secret about particulars such that they need to be shrouded in convoluted language. An accused is entitled to the particulars so identified and clearly expressed, even if there is an element of evidence necessarily enmeshed with them, because it is the case that the prosecution seek to prove that an accused is required to meet. That is what I consider to be the dual function of particulars.

47. [47]
    There are said to be some 16 hours of taped telephone conversations “generally” relevant and some “specifically relevant”, but within the context of the “generally relevant” telephone conversations, that the prosecution intends to rely on to prove the charges against each of the applicants.

48. [48]
    How a Judge is expected to distil appropriate directions to the jury from this mass of material should not be left to the trial – or more particularly, the end of the trial – to in some way determine.

49. [49]
    How a jury is expected over the course of three or probably, four days of listening to turgid or disconnected telephone intercept evidence and somehow gain an informed appreciation of the opening of the prosecution case (that is, how the case is to be proved), unless the case against each accused, including the applicants, is particularised in a sequential, comprehensive and literally intelligible way, is beyond frankly me.

50. [50]
    The current so-called “particulars” give no more than “lip-service” to the obligation that the prosecution alert a defendant to the case he or she must meet. That obligation is not acquitted by commencing a case and sorting it out “on the run” with a vague notion that if in that process a defendant has difficulty in understanding what the case he has to respond to by way of defence actually is, he can ask the prosecution to define it. That seems to be what Mr Robson contemplates. He is wrong to think that a court will tolerate that approach. It will not. Most certainly, I will not.

51. [51]
    The current particulars are inadequate. If the prosecution cannot frame its case in terms beyond mere recitation of principle drawn from divers case authority and applied to this case without any discernible connection to the necessary proofs of evidence, then it will fail. If the prosecution cannot provide proper particulars it cannot properly open the case to a jury, let alone prove the case. It is not sufficient to point to evidence that in effect is dumped in the well of the court with an invitation to the defendants, the judge and the jury to rummage through it to find the gems of particularity which the prosecution may be relying on.

Conclusion

52. [52]
    In respect of both Watkins and Spry, I grant their respective applications. I direct that the prosecution provide proper and adequate particulars of the charge as it is to be prosecuted against each of the applicants.

53. [53]
    The balance of the applications are adjourned to a date to be fixed. I will give the parties liberty to apply for any directions as to the conduct of the balance of the applications.

Orders

1. The applications for particulars are granted in respect of each of the applicants, Watkins and Spry.
2. The prosecution is directed to provide proper particulars of the case against each of Watkins and Spry.
3. The balance of the applications of Watkins and Spry respectively are adjourned to a date to be fixed.
4. The parties have liberty to apply for such further directions as may be required in respect of the balance of the applications.