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R v Watkins & Spry (No.2) QDC 268
DISTRICT COURT OF QUEENSLAND
R v Watkins & Spry (No.2)  QDC 268
DANIEL PATRICK WATKINS
TENNILLE COURTNEY SPRY
Townsville DCR 156/14
District Court at Townsville
02 November, 2015
27 July 2015
Durward SC DCJ
CRIMINAL LAW – PARTICULAR OFFENCES – ATTEMPTS TO PERVERT THE COURSE OF JUSTICE – proofs required to discharge prosecution onus – elements of the offence – what prosecution must achieve on the evidence.
CRIMINAL LAW – INDICTMENTS – ATTEMPT TO PERVERT THE COURSE OF JUSTICE - PARTICULARS OF OFFENCE - ADEQUACY – where both applicants charged with an attempt to pervert the course of justice – where evidence against each is a small part of lengthy evidence alleging a course of conduct characterised as a ‘joint criminal enterprise’ – where s 7 only and not s 8 Criminal Code (Qld) relied on as the party provision – whether the further particulars provided by the prosecution are adequate – where applicants again seek further particularisation of the case against each of them.
CRIMINAL LAW – PARTIES TO OFFENCES – JOINT CRIMINAL ENTERPRISE – whether the phrase ‘joint criminal enterprise’ can apply to conspiracy and to an inchoate offence such as attempt to pervert the course of justice – whether reliance on s 7 (1) (b) and (c) sufficient – where evidence includes third party statements communicated by and between co-offenders – where one offender not a party to the communications.
Criminal Code (Qld) sections 7, 8, 97, 130, 132, 140, 590AA.
R v Watkins & Spry  QDC (unreported 10.12.14); McAuliffe v R (1995) 183 CLR 108; R v Walton & Harmon  QCA 309; R v Tangye (1997) 92 A Crim R 545; R v Huynh v R (2013) 87 ALJR 434; R v Jeffrey  QCA 460; R v Morex Meats Australia Pty Ltd & Daube (1996) 1 Qd R 418; R v Meissner (1995) 184 CLR 132; Hugo v R  WASCA 199; R v Rogerson (1992) 174 CLR 268; Tsang v R (2011) 35 VR 240; R v Woods  1 QB 447; Tripodi v R (1961) 104 CLR 1; Ahern v The Queen (1988) 165 CLR 87; R v Minuzzo & Williams  VR 417; R v Masters & Ors (1992) 26 NSWLR 450; R v Graham & Alliston  QCA 187; Osland v The Queen (1998) 197 CLR 316.
A W Collins for the applicant Watkins
C J Grant for the applicant Spry
J Robson for the respondent
Arthur Browne & Associates for the applicant Watkins
Anderson Telford Lawyers for the applicant Spry
Office of the Director of Public Prosecutions for the respondent
- The applicants Daniel Patrick Watkins (“Watkins”) and Tennille Courtney Spry (“Spry”) (when referred together, “the applicants”) are jointly charged with four others, with an offence of ‘attempting to pervert the course of justice’, over a six month period in 2012. The applicants seek orders for further particularisation of the prosecution case against each of them; and to limit the admissibility of evidence against them derived from telephone calls by or between some of their co-defendants or between their co-defendants and other persons.
- I heard the pre-trial applications together on 27 July 2015.
- I have previously delivered a judgment in R v Watkins & Spry  QDC (unreported10.12.14) (“the first judgment”) on an earlier application by the applicants, on 10 December 2014. I ordered that the prosecution provide proper particulars of the case against each of the applicants. Amongst other things, the applicants now argue that the particulars since provided to them are also inadequate.
- The prosecution alleges that all six defendants acted in a “joint criminal enterprise”, in the sense that the object of their joint participation (including that of the applicants) was to interfere with the proper prosecution of a co-defendant Powhiri Leo Tanerau-Love for an offence involving dangerous drugs committed (in fact) on 18 July 2012. The prosecution alleges that each of the applicants is either a principal or a party to the offence pursuant to s 7 of the Criminal Code (Qld). The prosecution does not rely on s 8 of the Criminal Code (Qld).
- The evidence primarily involves intercepted telephone calls, some involving persons other than the six defendants. There is some direct evidence of dealings between Watkins and others which is relevant in the case against him, but not necessarily so (or to a lesser extent, perhaps) in the case against Spry.
- Counsel for the applicants foreshadowed that a consequence of a successful application in each case, in respect of the issue concerning whether the charge ought to be one framed in terms of a “joint criminal enterprise”, would likely to be an application for a stay of the indictment in respect of each of them.
- There was also foreshadowed by counsel for the applicants an application to sever the indictment and order separate trials for each of them.
- Each of the defendants have been arraigned. Powhiri Leo Tanerau-Love (“Powhiri”), Tahu Ricky Tanerau (“Tahu”) and Shaun Lee Price (“Price”) have pleaded guilty and have been sentenced. Tania Jane Tanerau-Love and the two applicants pleaded not guilty. Tania Jane Tanerau-Love has not made or joined any pre-trial application.
The other persons
- Other persons were involved (in what arguably was in some cases, a peripheral sense) in some of the relevant events. A person Jami-Lee Nugent (“Ms Nugent”) and persons ‘Butler’ and ‘McDonald’ (one or more of whom may shortly be referred to) have not as far as I am aware been charged with any criminal offence arising out of the circumstances of the case against the applicants. A juvenile, one NRMT, was charged separately in the Children’s Court of Queensland and sentenced on 11 July 2014.
- There will also be reference to legal practitioners, although it is not necessary to name all of them, who were consulted in the course of the conduct described in the particulars and in other respects. Two were solicitors, but their conduct is in no way impugned. The other was ‘the lawyer’ whose conduct I described in my earlier judgment as being highly questionable from an ethical and professional point of view.
- The basis of the prosecution case against the applicant Watkins was initially particularised in the following terms, in correspondence dated 21 May 2014:
“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 [Leo] Tamerou-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.”
- The basis of the prosecution case against the applicant Spry was initially particularised in the following terms, in correspondence dated 17 March 2015:
“The defendant’s offending relates to actions done (by herself and other participants) to encourage and/or aid Jami-Lee Nugent and/or Shaun Price to provide false information to police, in furtherance of the ‘joint criminal enterprise’ and that a number of acts were undertaken by her with intent to pervert the course of justice, namely communicating with participants in the enterprise in furtherance of a developing plan for Jami-Lee Nugent to claim responsibility for the dangerous drugs and for Shaun Price to claim responsibility for the dangerous drugs, enabling direct contact between Shaun Price and Tahu Tamerou-Love and/or communicating with Shaun Price directly, attempting to have him claim responsibility for the dangerous drugs.”
Further particularisation of the cases against the applicants
- With respect to Watkins there are now particularised a number of specific acts said to have been done by him with intent to pervert the course of justice, namely:
- (i)Watkins took the ‘witness’ Ms Nugent to a solicitor’s office on Charters Towers Road, Townsville;
- (ii)On a first occasion he took her to the solicitors, Watkins provided Ms Nugent with drugs and money;
- (iii)On a second occasion Watkins took Ms Nugent to a solicitor on Flinders Street, Townsville; and/or
- (iv)Watkins promised to give Ms Nugent further money and drugs if she provided a statement to “take the blame” for the dangerous drugs.
- The prosecution evidence relevant to the proof of those acts is said to be, respectively:
- (i)A statement of Ms Nugent dated 11 March 2013;
- (ii)Telephone calls recorded at the Townsville Correctional Centre from the account of Powhiri, to which the Watkins was a party (various dates); and/or
- (iii)Telephone calls recorded at the Townsville Correctional Centre from the account of Powhiri, in which Watkins was mentioned (various dates).
- There is also arguable an ‘admission’ by Watkins to the police which I will refer to shortly.
- With respect to Spry there are now particularised a number of specific acts said to have been done by her with intent to pervert the course of justice, namely:
- (i)Communicating with participants in the enterprise in furtherance of a developing plan for Ms Nugent to claim responsibility for the dangerous drugs;
- (ii)Communicating with participants in the enterprise in furtherance of a developing plan for Price to claim responsibility for the dangerous drugs; and/or
- (iii)Enabling direct contact between Price and Tahu; and
- (iv)Communicating directly with Price and attempting to have him claim responsibility for the dangerous drugs.
- The prosecution evidence relevant to the proof of those acts is said to be, respectively:
- (i)Telephone calls recorded at the Townsville Correctional Centre, from the account of Tahu and/or of Powhiri (various dates);
- (ii)Telephone calls recorded at the Townsville Correctional Centre, from the account of Tahu (various dates);
- (iii)Telephone calls recorded at the Townsville Correctional Centre, from the account of Tahu (various dates); and
- (iv)Telephone calls recorded at the Townsville Correctional Centre, from the account of Tahu, and/or Powhiri (various dates).
- Criminal responsibility (by inference, generally) against the applicants, is said also to arise from acts by others allegedly involved in the joint criminal enterprise, namely:
- (i)The conduct of Watkins in taking Ms Nugent to a solicitor’s office on two occasions in two locations;
- (ii)A statement made by Tahu to Price in a telephone call;
- (iii)The making of a document “Statement by Shaun Lee Price” (dated 10 December 2012), which was disclosed to Townsville Police Prosecutions on 13 December 2012; and/or
- (iv)Statements made by Price during a recorded conversation (a record of interview) with Townsville Police on 14 December 2012;
- In July 2012 Ms Nugent went with two men, Butler and McDonald and another person to meet Powhiri at Seagulls Resort in North Ward in Townsville. She had arranged to meet Powhiri there to buy some dangerous drugs (Methylamphetamine). Price was also there at a resort room when she arrived. She bought some drugs from Powhiri.
- She left with some of the other persons but returned later to the motel room. The police then apprehended all of the persons that were there. Ms Nugent was charged with possession of a dangerous drug.
- Ms Nugent says in her Statement of Witness that she was told by various people, over a period of time, that Powhiri was trying to get someone to take the blame for the possession of the drugs out of which Ms Nugent was supplied. Those people included McDonald and the juvenile NRMT. She says that she was told Powhiri would pay money to a person who made a statement to a solicitor accepting responsibility for the drugs. The sum of money offered varied in quantum but was said to be up to $10,000.00 and to include a car belonging to Powhiri. She says she also spoke to Powhiri about the arrangement.
- Ms Nugent said that Watkins took her to a solicitor who had an office on Charters Towers Road. Watkins waited outside and she went to the solicitor and told her what she wanted to do. The solicitor declined to assist her. She says that a few days later Watkins took her to another solicitor on Flinders Street. That solicitor also declined to assist her.
- She says she then decided not to do what had been requested and that she was thereafter threatened with harm for pulling out of the “arrangement”.
- Price is a friend of Powhiri. He was at the Seagulls Resort with Powhiri and a woman he knew as ‘Shanae’ on 18 July 2012. They had booked into a resort room. During the afternoon he had put some “ice” (Methylamphetamine) and “chronic” (synthetic cannabis) in a grey and black bum bag. He says that he did that for “safekeeping” while he had a sleep.
- He says that about 7pm in the evening some plain clothes police officers entered the room and asked him if he knew Powhiri and he told them he did not know him [that was untrue because he had said at the commencement of the statement that he had known Powhiri since high school days and they had been mates ever since]. He said the police found a urine vial with Powhiri’s name on it and when they asked him again whether he knew Powhiri he made the same answer. Powhiri and others then came into the room with detectives but subsequently Powhiri and the men were taken away.
- Price says that he had not told the police about the drugs being his property because he didn’t believe it was any of their business, but was merely something between Powhiri and him. He said “I don’t want Powhiri getting into trouble for something that is not his property.”
- Price claims that the statement was made after seeking legal advice, that it was made of his own free will and he had never met Powhiri’s lawyer before this day. The “lawyer” appears to be a local barrister, Gavin Hansen.
The proceedings against Powhiri, Tahu and Price
- Powhiri and Tahu were convicted and sentenced by Judge Baulch SC in respect of possession of drugs and drug-related equipment on 27 June 2014. Both of them had been on parole when the offences were committed and hence they had been taken back into custody and at the time of sentence it appears that they had served about two years of imprisonment.
- Powhiri was sentenced to six months’ imprisonment for possession of Methylamphetamine and three months’ imprisonment in respect of possession of a set of scales. The terms were concurrent. In respect of the charge of attempting to pervert the course of justice, he was sentenced to twelve months’ imprisonment to be served concurrently with the other terms. A parole eligibility date was set as at the date of sentence.
- Tahu was sentenced in respect of the charge of attempting to pervert the course of justice to nine months’ imprisonment with a parole eligibility date set as of the date of sentence.
- All of the new terms of imprisonment were to be concurrent with the sentence upon which they were already serving as a consequence of their breach of their respective parole.
- Price was convicted and sentenced on by Judge Martin SC of the charge of attempting to pervert the course of justice (and some summary offences) on 11 February 2015. He was sentenced to 13 months imprisonment on the indictable charge, which took into account a period of about 5 months of pre-sentence custody that was not declarable. He received a cumulative term of imprisonment in respect of one summary charge and was convicted but not further punished on the other summary charges. A parole release date of 05 April 2015 was fixed.
- Both Watkins and Spry, together with Powhiri, Tahu, Tania Tanerau-Love and Price, are charged with the an offence made pursuant to s 140 of the criminal Code (Qld):
“Attempting to pervert justice
140 A person who attempts to obstruct, prevent, pervert, or defeat the course of justice, is guilty of a crime.”
- The course of justice, “is perverted or obstructed by preparing or preventing the capacity of a court to do justice” in a particular case. An ‘act’ which has a tendency to give effect to such impairment is the gravamen of the offence: R v Rogerson (1992) 174 CLR 268.
- Despite the use of the word “attempt”, the offence is a substantive offence. The act is complete upon the doing of the act which is alleged to have the requisite tendency and is intended to, pervert the course of justice: Meissner v R (1995) 184 CLR 132. See also Hugo v R  WASCA 199.
- In Meissner Dawson J wrote, at 159:
“The intention required to constitute the offence of attempting to pervert the course of justice is an intention to pervert the course of justice, that is to say, an intention to do something which, if achieved, would pervert the course of justice. The act required is an act which has the tendency to pervert the course of justice. The motive with which such an act is done is irrelevant except to the extent that it may throw light upon the requisite intent.”
- Knowledge that the offence is being committed or is intended is necessary to establish criminal responsibility: “Knowledge’ means that it must be proved by the prosecution that the defendant knows the essential facts constituting or making up the offence that is being or about to be committed by the person he is aiding or assisting”: R v Jeffrey  QCA 460. In other words, the party provisions in s 7 (1) (b) and (c) “applies only when the aider either has the necessary intention to commit the offence ot at least knows that the principal offender has the intention”: R v Graham & Alliston  QCA 187, at . By contrast, such knowledge is not the equivalent of “having a pretty good idea”: R v Woods  1 QB 447, at 452 per Phillimore LJ.
- The ‘acts’ the subject of the charge may consist of one or more similar or different acts, each or all of which may have the requisite tendency and be intended to pervert the course of justice; and the acts may be charged in respect of a single count on the indictment: R v Morex Meats Australia Pty Ltd. & Daube (1996) 1 Qd R 418.
The party provisions in the Criminal Code (Qld)
- Section 7 of the Criminal Code (Qld) provides as follows:
7(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –
- (a)every person who actually does the act or makes the omission which constitutes the offence;
- (b)every person who aids another person in committing the offence;
- (c)every person who aids another person in committing the offence;
- Section 8 of the Criminal Code (Qld) provides as follows:
“Offences committed in prosecution of common purpose
8 When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose that offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
Mr Collins for Watkins
- Mr Collins submitted that the charge against Watkins was predicated on his being part of a joint criminal enterprise, but was made in reliance upon s 7(1) (a), (b) and (c) only and not upon s 8, of the Criminal Code (Qld).
- He submitted that where the prosecution relied on s 7 only, there was a fundamental difficulty in proceeding on the basis of a “joint criminal enterprise” because it involved some form of “pre-concert” or “common purpose”. Hence his submission that it was inappropriate for the prosecution to particularise the alleged offending as a common criminal enterprise (which seems to me to be his manner of expressing the prosecution particularisation of a “joint criminal enterprise”).
- Mr Collins contended that the appropriate charge should have been one under s 132 of the Criminal Code, namely:
“Conspiring to defeat justice
132(1) Any person who conspires with another to obstruct, prevent, pervert, or defeat, the course of justice is guilty of a crime …”
- He submitted that the prosecution has in fact particularised circumstances amounting to a “conspiracy”, without charging those circumstances in terms of s 132. He also submitted that the prosecution was in effect alleging “a continuing offence”. He submitted that the particulars provided by the prosecution do not show how Watkins was a party to the offending of any of the co-offenders pursuant to s 7(1) (b) or (c) and that by relying on s 7 as the basis for criminal responsibility, the prosecution were improperly attempting to capture “every possible scenario which might result in a finding of criminal culpability” without identifying the case the prosecution sought to make out. He contended that this approach by the prosecution was intended to justify the admission of “third party statements” against Watkins, those third party statements being the content of the telephone calls recorded at the Townsville Correctional Centre.
- There are two arch-lever filing binders of telephone intercept recordings.
- Finally, so far as this application is concerned, Mr Collins referred to there being telephone calls by Powhiri and Tahu from the Townsville Correctional Centre to “the lawyer” (to whom I have referred above) that were not recorded and the content of which is not known through any currently accessed source.
Mrs Grant for Spry
- Mrs Grant submitted that the prosecution case against Spry relied entirely upon Spry’s communications with co-defendants and the contention that she attempted to pervert the course of justice by developing a plan for both Price and Ms Nugent to falsely claim responsibility for the dangerous drug; and by enabling contact between co-defendants; and through communications between others, each act in furtherance of a “joint criminal enterprise”.
- She submitted that there was no particularised act or omission establishing that the applicant had knowledge that Powhiri was not truly criminally responsible for the dangerous drugs; or evidence of her knowledge that an offence has been committed, or was intended to be committed, which she submitted was an essential requirement when reliance is placed upon s 7; that the prosecution had not particularised how Spry was said to have had knowledge of any of the events relied upon or how she was alleged to have been a party, pursuant to s 7, to the conduct of a principal or of a principal and others. She submitted that no offence had been committed by Spry.
Mr Robson for the respondent
- In respect of the case against the applicants
- Mr Robson described the case against the applicants in the following terms, summarised in my own words to some extent, drawing on the evidence available through the police investigation:
“At the early stages of the ‘enterprise’ Powhiri and Tahu were attempting to arrange with Tania Tanerau-Love, Spry and the juvenile NRMT to have someone else claim that the drugs located in the bag found on Powhiri belonged to them. The initial plan was to attempt to have Ms Nugent, who was present at the time of the police arrests of persons, claim responsibility for the drugs. It also appears that Price was also considered for that role at an early stage. It appears there was an offer for between $5,000 and $15,000 and the gift of a motor vehicle to Ms Nugent if she agreed to accept responsibility for the drugs. Tahu, who was also in prison, also spoke to and instructed others in an attempt to convince Ms Nugent or Price to provide the statement. At some stage Watkins also became involved and was spoken to by Powhiri and Tahu to make the offer to Ms Nugent and to encourage her with the provision of drugs and money and to take her to solicitors for her to make the statement. Eventually it seems that those involved in the enterprise realised that Ms Nugent was unwilling, after having been rebuffed by two different solicitors, to go through with the making of a false statement. The plan then changed to focus on Price for him to take the blame or responsibility for the ownership of the drugs. It is suggested that through the recorded telephone conversations that Powhiri and Tahu wanted to have someone who was present during the execution of the search warrant by the police at the resort room on 18 July 2012, to claim responsibility for the drugs. Price eventually gave a Statement to the police through the [inappropriate, to say the least] intervention of ‘his’ lawyer and then participated in an interview, albeit reluctantly, with police on 14 December 2012 where he claimed responsibility for the drugs found in the bag at the Seagulls resort on 18 July 2012. Price subsequently was not charged with this drug offence by police as they did not believe his version of events.”
- Mr Robson submitted that the Crown, in relying upon actions and/or statements by other co-defendants made or undertaken outside the presence of the applicants, to prove the guilt of the applicants, requires the prosecution to show the existence of a common unlawful purpose; “reasonable evidence” that the applicants were participants in that common unlawful purpose; and that the actions or statements of the co-defendants were in furtherance of that common unlawful purpose. He submitted that the evidence of actions or statements of co-defendants, if not for that purpose, nevertheless was admissible as evidence to show the existence of a common unlawful purpose or to prove an element of the offence charged.
In respect of Watson specifically
- Mr Robson submitted that the statement of Ms Nugent directly implicated Watson in the unlawful enterprise and that a number of the telephone calls dealt with the very things that Watkins and Ms Nugent actually did: that is, the visits to the two solicitors for the purpose of Ms Nugent making a false statement. Further, Mr Robson submitted that the prosecution relied on an admission by Watkins expressed in circumstances where the Investigating Officer Senior Constable Hilton spoke to Watkins at the Townsville CIB on 15 May 2013 and explained what the allegation was in simple terms and told Watkins he had an opportunity if he was so willing, to take part in a record of interview and answer questions in relation to the matter. Watkins had replied, “No, I’m not willing. I would like to make one statement but. If I had known it was illegal what I was doing I would not have done it.” Mr Robson submitted that the question and answer to which I have referred corroborated his identification as the person “Danny” referred to in some of the telephone calls.
- The prosecution recorded telephone calls where Watkins was not a direct participant, which fell into two categories: the first involving Ms Nugent and the second involving Price. Mr Robson submitted that the tenor or content of those telephone calls implied a common unlawful purpose between Powhiri, Tahu and others to attempt to arrange other persons (specifically Ms Nugent and later Price) to falsely claim responsibility for the relevant drugs. He submitted that the evidence of Ms Nugent and the statement made for and interview given by Price, further corroborate the existence and nature of the common unlawful purpose and Watkins’ direct participation in it.
- Mr Robson submitted that the telephone calls that Watkins was seeking to have excluded are admissible in their own right as evidence to show the totality of the offending conduct which constituted the continuing offence of attempting to pervert the course of justice, quite apart from their admissibility as direct evidence of the existence of a common unlawful purpose.
- Mr Robson’s submission was that the particulars provided to date were sufficient and, in effect, the prosecution had abided its obligation with respect to the provision of particulars.
In respect of Spry specifically
- Mr Robson referred to the recorded telephone calls and submitted that they clearly suggested a common unlawful purpose amongst Powhiri, Tahu and others to attempt to arrange other persons (specifically Ms Nugent and later Price) to falsely claim responsibility for the relevant drugs. He submitted that there was a large body of evidence to indicate that the person involved in the relevant phone calls was Spry, including the fact that she was an approved phone call recipient on the nominated prison phone records of Powhiri and Tahu and often answered to or self-identified as “Tennille” on many phone calls made to the nominated phone account. Further, there were listed phone numbers registered to a person Matthews at an address in North Ward, which is the address where Spry was living when she was spoken to by Senior Constable Hilton on 30 April 2013. Mr Robson submitted that Spry in some of the telephone calls to Tahu indicated that she had gone or was to go to the prison to visit him and that there was a prison record that on 23 June 2012 she made an application for an approval to visit him.
- It was submitted that the existence of a plan to have others claim responsibility for the drugs could be inferred from a number of events, including many telephone calls (other than those in which Spry had participated) involving Powhiri, Tahu, Tania Tanerau-Love, the juvenile NRMT and Watkins which refer to getting “that girl” to do the right thing, staying in contact with “that girl” taking “that girl” to solicitors and references to “Macka’s girl”. He submitted that the content of those phone calls reflect the sworn statement of Ms Nugent and confirmed her relationship with McDonald (“Macka’s girl”); and the statement of Ms Nugent connects with evidence about evidence of ceased letters, one of which is addressed to “Macka’s girl” and contains reference to money and a car, those being the subject of a number of the phone calls. Mr Robson said that that evidence amounted to proof of Spry’s participation in the same common purpose as were the others involved in.
- Mr Robson referred to the implausibility that Spry could believe that Ms Nugent and Price were the actual sole owners of the drugs in the face of the content of the phone calls. He submitted that it could not be credibly submitted on behalf of Spry that there was no evidence, either direct or indirect, from which reasonable evidence of preconcert could be inferred or that there was an absence of any evidence that Spry had knowledge of the fact that Ms Nugent or Price, or either of them, were not the true owner of the dangerous drugs.
- Mr Robson submitted that the recorded telephone calls, the seized letters (which include the statement of Price) and the direct evident of Ms Nugent were admissible to show the existence of a common unlawful purpose and otherwise as evidence to show the totality of the offending conduct in the context of a continuing offence of attempting to pervert the course of justice.
- Similarly, Mr Robson’s submission was that the particulars provided to date were sufficient and, in effect, the prosecution had abided its obligation with respect to the provision of particulars.
The function of particulars
- In the first judgement I discussed at paragraphs  to  the function of particulars; and at paragraphs [ to  the quality of the particulars provided at that time. I do not need to repeat that discussion here, although paragraphs  to  in the first judgment remain relevant to these further applications.
- Mr Collins’ argument is directed at the characterisation by the prosecution of the conduct of all of the defendants as a “joint criminal enterprise”, in circumstances where the prosecution asserts some form of pre-concert and relies on s 7, but does not rely on s 8; and upon an assertion that the charge should really be one of conspiracy in effect and that it should or could more properly have been brought pursuant to s 132.
- In Ross on Crime (3rd ed. 2007 Lawbook Co.) the author writes, at 16.905, that ‘perverting the course of justice’ “is generally laid as an attempt to pervert the course of justice or as a conspiracy” [my underlining]. I do not know the source of that statement which may simply be anecdotal and drawn from the experience of the late learned author.
- The content of non-recorded telephone calls from Powhiri and Tahu to “the lawyer” is not known to the prosecution. One might assume that Powhiri, Tahu and “the lawyer” know what was said, but that it is unlikely that the prosecution will acquire that knowledge. This matter was not developed in submissions to a stage where any meaningful analysis can be made of it in the context of prejudice to the applicants. It is not a matter that I can consider further on this application. All that can reasonably be said is that those telephone communications are not presently part of the prosecution case and indeed are unlikely to be so.
Joint criminal enterprise
- The term “joint criminal enterprise” is used to “provide a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime” by alleging “a common purpose shared with the principal offender or with that offender and others”, through “an undertaking or arrangement amounting to an agreement between that person and another or others that they will commit a crime”: McAuliffe v R (1995) 183 CLR 108.
- Whilst the phrase has been said not to be particularly helpful “in terms of criminal liability under s 7 as distinct from s 8”, it may nevertheless be relevant depending on the circumstances: R v Walton and Harman  QCA 309.
- However, it has been held that the prosecution “ … needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed”: R v Tangye (1997) 92 A Crim R 545.
- The High Court referred to the doctrine of ‘joint criminal enterprise’ in the following terms in Huynh v R  87 ALJR 434, at :
“The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution. Of course there will usually be no occasion to have recourse to the doctrine in the case of a party who does some or all of the acts constituting the actus reus. The work done by the doctrine is in making other parties liable for those acts. The principles are as explained by McHugh J in Osland v The Queen. Liability attaches to all the parties to the agreement who participate in some way in furthering its execution.”
- McHugh J in Osland v The Queen (1998) 197 CLR 316 at  –  wrote a compendious explanation of the relevant principles as they may relate to a broad range of evidential circumstances.
- In Tsang v R (2011) 35 VR 240, the defendant was convicted and sentenced for an offence of importation of a commercial quantity of the controlled drug MDMA. The prosecution case included evidence of four lawfully intercepted telephone conversations between a co-defendant and an alleged co-conspirator. The defendant was not present during the conversations. His appeal against conviction was dismissed.
- The Court of Appeal held that the trial Judge was correct in ruling that the various parts of the four telephone conversations were admissible as evidence of an agreement to traffick in drugs and the defendant’s knowing participation in that agreement; and that there was, in effect, no issue arising from the defendant’s inability to cross-examine the co-defendant and the co-conspirator at the trial.
- With respect to the admissibility of the four telephone calls, the Court held (at pp 249-251) that there were three bases under which evidence of statements made by a third person co-defendant in the absence of the defendant may be admissible. Firstly, the statements may be circumstantial evidence which, along with other evidence, is relevant to the Crown or defence case. The Court continued:
“ The admissibility of such evidence does not depend on the existence of a common purpose between the accused and a party to the conversation, provided that it is relevant as part of the surrounding circumstances which tend to prove the accused person’s guilt of the offence. Nor is it necessary for the statements to be made in furtherance of an agreement between the accused and others to commit an offence. Such statements are not admitted as an exception to the hearsay rule (that is, as evidence of the truth of an assertion made), but rather as circumstantial evidence from which an element or elements of the offence can be inferred. …
 Secondly, such statements may be admitted as original evidence to support a Crown case that the accused entered into an agreement with others to do the unlawful act with which he or she is charged. Again such evidence is not admissible as an exception to the hearsay rule, but as original evidence. As is the case where no agreement to do an unlawful act is alleged, it is unnecessary to prove that the statements were made in furtherance of the conspiracy.
 Thirdly, such statements may be admitted under the co‑conspirators’ principle, which permits their admission as evidence of truth of the statements made in the absence of the accused,that is as an exception to the hearsay rule. In conspiracy cases, such evidence may be admitted to prove the accused person’s participation in conspiracy to do an unlawful act. …”
“ The trial judge must find that there is reasonable evidence (other than the evidence sought to be admitted) of the existence of the conspiracy and of the accused’s participation in it, before the statements made in the absence of the accused by other conspirators in furtherance of the conspiracy can be left to the jury as evidence of these matters.
 The co-conspirator’s principle is not limited to cases in which the alleged offence is conspiracy, but also covers substantive offences which have allegedly been committed by persons acting in concert.”
- In Tripodi v R (1961) 104 CLR 1, at p7, Dixon CJ, Fullager and Windeyer JJ wrote that:
“… It is customary at criminal trials simply to treat the presence or absence of the prisoner as decisive of the admissibility of things said and it is a pity to rob that empirical but practical and convenient test of any of its usefulness. But often enough in an ordinary case where there is no confederation or preconcert, directions, instructions and the like although spoken in the absence of the prisoner may, according to the circumstances of the case, be admissible as res gestae or relevant facts.”
- Their Honours wrote at pp 6-7, in response to a submission on the appeal to the effect that conversations at which the appellant was not present were inadmissible in respect of a charge of a substantive offence, because it was a rule of a special nature in respect of a charge of conspiracy:
“It is a mistake to think that the rule the chief application of which is in charges of conspiracy is a special rule of evidence confined to that offence. But at the same time it may well lead to error if the question of the admissibility of such evidence in any given case is treated exactly in the same manner as it might be on a charge of conspiracy. For upon a charge of conspiracy the proof of the crime may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment. When that is so evidence may readily be let in of what each party to the conspiracy alleged may do or say in furtherance of the common purpose. But when a substantive crime, not a conspiracy, is charged in the indictment it is the ingredients of the substantive crime that must be proved, not combination for a common purpose. When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. In The King and The Attorney-General of the Commonwealth v Associated Northern Collieries (the Coal-Vend case) [(1911) 14 CLR 387, at 400] Isaacs J said of the evidence of the acts of individuals done in furtherance of a pre-concerted common design in cases of conspiracy what is doubly true when such evidence is tendered in proof of a charge of a substantive crime committed by several acting in pre-concert: “It is an error to say that acts of one defendant, however numerous, and however pointedly in furtherance of the prohibited purpose, are necessarily admissible as overt acts of (an) offence against a co-defendant charged with conspiring with the first. They are not so admissible unless the two defendants are shown to be associated for that purpose, so as to make the purpose common to both.” It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts.”
- In R v Mbonu (2003) 7 VR 273, a case involving a charge of a substantive offence of being knowingly involved in the importation of a trafficable quantity of a prohibited import namely cocaine, evidence of acts and conversations between two men in Indonesia about the importation and the subsequent contact between one of them who had returned to Australia and the applicant was admitted against the applicant on his trial as proof of the arrangements made for the importation and as part of the proof that he was knowingly concerned in the importation. The applicant’s argument that the admission of the evidence was wrong, failed on appeal. However, Vincent JJA, with whom Cummins AJA agreed, was critical of the trial judge for referring to the concept of conspiracy in his directions to the jury and said “The proper approach, as I see it, would have been for the judge simply to have instructed the jury as to what evidence was admissible and how it could be used.”
- The High Court in Ahern v The Queen (1988) 165 CLR 87 (at ) confirmed that the test adopted in Tripodi is the appropriate one with respect to the meaning of “reasonable evidence”:
“Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant… if there is any difference between ‘reasonable evidence’ and ‘a prima facie case’ which in this context we very much doubt, then the words ‘reasonable evidence’ are to be preferred providing, as they do, a test of admissibility which no more precise expression is needed. The aim in limiting the use which might be made of a co-conspirator’s acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused. For this purpose, the element of discretion implicit in the term ‘reasonable evidence’ is desirable.”
- The High Court in Ahern also dealt with the determination of the sufficiency of the independent evidence, in the following terms (at ):
“The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity.”
- In R v Minuzzo & Williams  VR 417, the Court of Appeal was hearing an appeal in a conspiracy case, where the directions of the trial judge as to the use of evidence admitted against a number of co-defendants was in issue. Young CJ, at 431 wrote:
“An accused person is entitled to have his case considered upon the evidence admissible against him. In a conspiracy case such as the present there are three classes of evidence to be considered, namely (a) evidence of the acts and declarations of the accused whose case is being considered, (b) evidence of the acts and declarations of co‑accused from which the conclusion that there was a combination might be drawn, and (c) acts and declarations of co‑conspirators done or made in pursuance of the combination. Most evidence which falls within category (b) will also fall within category (c). Those two categories are not intended to be either co‑extensive or mutually exclusive.
Evidence in category (b) may be used in order to establish the conspiracy…. Evidence in category (c), which is sometimes described as evidence in furtherance of the conspiracy, may only be used against an accused whose case is being considered once there is some evidence that that accused is connected with the conspiracy. But it is not necessary that the jury should be satisfied of the guilt of the accused before they can use evidence of category (c). Satisfaction of guilt of course requires satisfaction beyond reasonable doubt. But evidence falling into category (c) can be used against an accused once prima facie proof of the accused’s connection with the conspiracy has been given…. The prima facie evidence which is here referred to is evidence described as directly admissible against the accused connecting him with the conspiracy alleged. By evidence directly admissible against the accused is meant in this context evidence other than the acts and declarations of the alleged co‑conspirators not in the presence of the accused. Whether there is sufficient evidence directly admissible against an accused connecting him with the conspiracy to make evidence in category (c) available to be used against him is a question for the jury.”
- In R v Masters (1992) 26 NSWLR 450, the Court of Appeal was considering a conspiracy case where the prosecution had led evidence of three conversations between one of the accused and another person involved in the conspiracy, two of the conversations having taken place before the other two accused were recruited into the enterprise and one afterwards. The Court (at 461), in considering the admissibility of the conversations against the co-accused, wrote:
“In order to establish that the particular accused participated in that conspiracy, there must first be reasonable evidence of that participation — that is, evidence independent of those acts and statements by other persons — which is admissible in the ordinary way against that accused: Ahern v The Queen (at 100). Once the judge has decided that there is such reasonable evidence in the case against that accused (a concept to which we will return later), the acts and statements by other persons in the conspiracy will become admissible against that accused not only as establishing the existence of the conspiracy but also, if they were done or made in furtherance of the conspiracy, as establishing his participation in it: Tripodi v The Queen (1961) 104 CLR 1 at 6-7; Ahern v The Queen (at 100, 103) …
It has not always been made clear in the cases just what constitutes an act done or a statement ‘made in furtherance of the conspiracy’. In Tripodi v The Queen (at 7), the distinction was drawn between such actions and statements and something said which is no more than a narrative statement or account of some event which has already taken place. Statements made in furtherance of the conspiracy, it was said, will usually be ‘directions, instructions or arrangements or … utterances accompanying acts’.
The expression itself — ‘made in furtherance of the conspiracy’ —suggests to us that a distinction should also be drawn between those acts or statements which form the conspiracy itself (that is, the acts or statements by which the agreement was made) and those which are done or made subsequently in furtherance of, or in carrying out, that conspiracy once the agreement had been made. The reference in Tripodi v The Queen to ‘arrangements’ was (we believe) intended to be to arrangements made in order to carry out the conspiracy, not to the formation of the conspiracy itself. Such a distinction is not one which will always be easy to make. It is certainly rare that there is direct evidence of the acts or statements which themselves form the conspiracy.”
- With respect to Spry, the prosecution here uses the phrase “in furtherance of a developing plan”. Of course, that is perhaps simply another way of expressing the phrase referred to in Tripodi and in Masters, namely “in furtherance of the conspiracy”, although as I have observed elsewhere the latter expression is unhelpful where the charge is one of an inchoate offence and not a charge of conspiracy.
- Insofar as a “continuing offence” is concerned, the prosecution rely on R v Morex Meats Australia Ltd v Daube (supra), which was a case involving a charge such as that made against the applicants and others. The court held, so far as is relevant, at 438-440, that:
“… in the context the word conduct seems to be used synonymously with behaviour, which itself commonly carries connotations of human activity occupying more than a single moment of time”
[that the judgment of McHugh J in Rogerson] “… shows that it is the tendency that is decisive, and it is that tendency on the part of the accused that the prosecution has to establish as one of the primary elements of the offence”
“the critical tendency must be directed to a particular result, which in this case was alleged to be the perverting of justice in relation to the power of the Commonwealth. Moreover, the range of conduct that may be examined in determining whether the proscribed tendency is established is necessarily constricted by the aspect of judicial that is sought to be perverted in a particular case … [but] within the limits imposed by that particular, any and all forms or manifestations of conduct having or alleged to have been the decisive tendency may be looked at in deciding whether a single offence has been committed.”
- I have made some observations about this issue in the ‘Conclusions’ that follow:
A Joint criminal enterprise
- A ‘joint criminal enterprise’ is not restricted to a s 8 case nor to a case of conspiracy. It is open to the prosecution to rely on s 7 (1) in the circumstances of this case. I do not consider that the phrase is either misapplied or inappropriate to the circumstances of this case. My review of the authorities clearly supports that conclusion.
B Continuing offence
- Where there are several acts or conversations amongst persons, directed to the planning or arrangements for the commission of a criminal offence, one characterisation of that activity may be that it is continuing. The observations in Morex Meats are apposite to that situation. I do not see any difficulty such as that alluded to by Mr Collins in the way the prosecution has particularised its case and its reliance on s 7 in this context.
C The ‘third party’ evidence
- Unless the two defendants here are shown to be associated for the prohibited purpose, that is the attempt to pervert the course of justice, so as to make the purpose common to both, the acts of a co-defendant are not admissible. It is the reasonable or prima facie evidence of participation of a defendant in, or his/her connection with, the arrangements for or the acts constituting the charged offence that must be established for the admission of acts or statements of others – ‘third parties’ against a defendant charged as a party to the substantive offence. Reference to a ‘conspiracy’ in describing the acts or statements is unhelpful.
- Evidence of third parties as discussed above is not restricted to charge of conspiracy. It may be admitted in the prosecution case provided the necessary participation or connection is made out on ‘reasonable evidence’. The latter is a matter for the trial judge to assess. Whether it is sufficient to prove the elements of the substantive offence beyond reasonable doubt so as to establish the guilt of the defendants or either of them is a matter for the jury.
- It is open for the prosecution to rely on ‘third party’ evidence (the recorded telephone calls) as particularised, against the applicants.
D Sufficiency of Particulars
- The particulars now provided by the prosecution are sufficient for the applicants to know the case they each have to meet. In respect of Watkins there is, inter alia, evidence of his own acts with Ms Nugent, his admission and the telephone evidence, which has been identified by Mr Robson. In respect of Spry there is, inter alia, the telephone evidence, the telephone registrations and records at the Correctional Centre and the evidence about her place of residence.
- With respect to the evidence against the applicants, I have set those matters out more fully in respect of each of them in the course of the judgment.
- The prosecution case is properly and adequately particularised.
- The applicants have not made out the several grounds relied on in each of their applications. On the materials I have been provided with for the purpose of the applications, there is reasonable evidence of the participation in or connection with the alleged joint criminal enterprise by the applicants. The particularisation of the prosecution is now sufficient or adequate or proper. The prosecution of this case on the basis of s 7 (1) of the Criminal Code (Qld) is regular and unimpeachable.
- Application of Watkins refused
- Application of Spry refused
- Published Case Name:
R v Watkins & Spry (No.2)
- Shortened Case Name:
R v Watkins & Spry (No.2)
 QDC 268
Durward SC DCJ
02 Nov 2015