R v Truong (No 2)[2019] QDCPR 54

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is the second s 590AA application^[1] brought by the defence for the following rulings: 

1. (a)
   That the evidence of the cannabis found at 48 Gleneagles Crescent, Oxley on 22 February 2016 is inadmissible and should be excluded at the trial;
2. (b)
   That the money found at 48 Gleneagles Crescent, Oxley on 22 February 2016 is inadmissible and should be excluded at the trial;
3. (c)
   That the evidence of the police search at 48 Gleneagles Crescent, Oxley on 22 February 2016 (and the associated audio recording) is inadmissible and should be excluded at the trial;
4. (d)
   The evidence of Sharon Marie Raabe as to his “unexplained wealth” or “betterment” is inadmissible and should be excluded at the trial. 

2. [2]
   As the argument developed, the crown undertook to provide trial particulars of the charge against the defendant by 25 October 2019. This meant that I could not make a ruling concerning the money found on 22 February 2016 (and associated conversations relating to the money).

3. [3]
   I am prepared to hear further argument on that point if the defence wishes to do so.

Background

4. [4]
   The background of this matter is set out in my judgment in R v Truong & Luong.^[2]  I do not propose to repeat the background. 

5. [5]
   I firstly will turn to the application to exclude Ms Raabe’s evidence.

6. [6]
   Ms Raabe is the principal financial investigator of the Crime and Corruption Commission (CCC). She has provided an affidavit for use in confiscation proceedings in the Supreme Court brought against the defendant. She was tasked by the manager of the Proceeds of Crime Unit at the CCC to complete an income and expenditure analysis of the financial affairs of the defendant. She has examined the financial affairs of him for the period 1 January 2015 to 22 February 2016.^[3] 

7. [7]
   She calculated the defendant’s unexplained wealth for the analysis period using the “income and expenditure methodology”. This methodology requires the calculation of the defendant’s known expenditure for a given period of time which is then compared to the respondent’s identified sources of income (lawfully acquired income) over the same period. Total expenditure minus lawfully acquired income equals funds from unknown sources (unexplained wealth).^[4] 

8. [8]
   Exhibit SMR01 is a list of the documents she relied upon for the income and expenditure analysis of the defendant. A number of general assumptions were made by her in carrying out her analysis. In particular, she assumed that all deposits to bank accounts or credit facilities that are described in the statements of accounts or source voucher as “cheque deposit” represent lawfully acquired income. Deposits to bank accounts or credit facilities for amounts less than $1,000 and described as anything other than “cash dep” or “cash deposit” represent lawfully acquired income. Cash deposits to bank accounts or credit facilities held by the defendant either solely or jointly are solely attributed to the defendant and represent unexplained wealth. Cash withdrawals conducted at the branch and via an ATM which could not be traced in part or in full to a corresponding cash redeposit or cash expenditure item have been expended on unidentified living expenses. Cash deposits to company bank accounts for individual amounts less than $1,000 represent business income. Deposits to company bank accounts which consist of direct transfers from third parties, EFTPOS deposits and ATM deposits represent business income. Cash deposits to company bank accounts for individual amounts of $1,000 and above (considered to be inconsistent with normal business earnings) represent unexplained wealth. Unless otherwise identified, withdrawals from company bank accounts represent business expenditure.^[5] 

9. [9]
   Ms Raabe caused inquiries to be conducted with ASIC concerning Rush Hour Transport Pty Ltd (Rush Hour Transport). This was registered on 24 March 2014 and deregistered on 10 February 2017. The defendant’s wife and brother were reported as directors of Rush Hour on 24 March 2014 and ceased as directors of the company when it was deregistered. The defendant’s wife is listed as the company’s secretary. ASIC inquires also showed the defendant’s wife and brother were the shareholders in Rush Hour, each holding six of the 12 issued shares.

10. [10]
    Ms Raabe made the assumption that all transactions conducted on ANZ bank accounts 014-202 1936-07916 and 014-202 1936-07908 held in the name of Rush Hour Transport are attributable to the defendant and as such expenditure and lawfully acquired income identified in the accounts have been included in her analysis.^[6]  She made this assumption for the following reasons: 

1. (a)
   During the execution of the search warrant at the defendant’s address on 22 February 2016 the defendant told QPS officers that he along with his wife and his brother owned Rush Hour Transport which operated removal services. 
2. (b)
   The defendant stated to QPS officers he was the manager of Rush Hour Transport. 
3. (c)
   Inquiries with the ANZ bank showed that the defendant, the defendant’s wife and the defendant’s brother are authorised signatories on the Rush Hour Transport bank accounts.
4. (d)
   A review of transactions conducted on the Rush Hour Transport bank account showed that payments to Attvest Finance and Gogetta Equipment Funding business loan accounts were held by the defendant; transfers to and from accounts held by the defendant and accounts held by the defendant’s wife and large cash amounts which are inconsistent with deposits of business accounts. 

11. [11]
    At paragraph 30 Ms Raabe sets out the bank accounts and credit facilities she has included in her analysis.

12. [12]
    Ms Raabe sets out a summary of the deposit transactions conducted on the defendant’s saving account in the analysis period,^[7] namely: 

1. (a)
   Cheque deposits: $11,000
2. (b)
   Unsourced deposits: $6,547.67
3. (c)
   Cash deposits: $332,283.89
4. (d)
   Business income: $108,859.44
5. (e)
   Gambling income: $14,109.57
6. (f)
   Amounts from Mrs Truong: $6,110
7. (g)
   Credit transfers: $1,020
8. (h)
   Credit interest: $8.42
9. (i)
   Credit refund: $52,668.58
10. (j)
    Total deposits – savings accounts: $532,607.57 

13. [13]
    A summary of the withdrawals from the savings accounts are as follows:^[8] 

1. (a)
   Cash withdrawals made inside bank branches: $45,115
2. (b)
   Cash withdrawals from ATM machines: $14,590
3. (c)
   Debit transfers: $70,798.09
4. (d)
   Electronic transfers to Mrs Truong: $26,512.12
5. (e)
   Interest charged on bank account balances: $106.65
6. (f)
   Payments to loan accounts: $148,979.91
7. (g)
   Withdrawals part payment for an address at Inala: $62,872.72
8. (h)
   General expenditure: $5,248.94
9. (i)
   Business expenditure: $152,017.69
10. (j)
    Bank fees: $6,491.03
11. (k)
    Total withdrawals – savings accounts: $532,732.15 

14. [14]
    Deposits to loan accounts amounted to $174,490.93 and withdrawal transactions from loan accounts amounts to $433,465.63.^[9] 

15. [15]
    The total expenditure incurred by the defendant in the analysis period amounted to $567,377.80.^[10] 

16. [16]
    With respect to the cash seized by the QPS on 22 February 2016 Ms Raabe notes this was located in a drawer beside the bed and the main bedroom seized by police during the execution of the search warrant at the defendant’s address at Oxley. The defendant was questioned about the cash and told police it was from his business, Rush Hour Transport, and he told police that he, his wife and his brother ran the business. He was the manager of the business, his wife was employed to do the accounting and the cash was from work over the last week.^[11] 

17. [17]
    The cash consisted of 9 x $100 notes, 333 x $50 notes, 159 x $20 notes and 5 x $10 notes. Ms Raabe reviewed the transactions conducted on the accounts and noted a withdrawal of $10,000 cash on 18 December 2015 from ANZ bank account number 014-295 3922-18454 in the name of Mr and Mrs Truong. The withdrawal voucher showed it consisted entirely of $100 notes. She was not able to identify any further withdrawals of cash from the bank accounts which could reasonably account for the location of this cash on 22 February 2016.^[12]  Because of the circumstances, she has included the full amount as a cash expenditure item during the analysis period.^[13] 

18. [18]
    Ultimately Ms Raabe has determined the lawfully acquired income derived by the defendant during the analysis period was $248,405.45.^[14]  She has also determined a summary of the lawfully acquired income as reflected in the savings accounts of the defendant to be $200,323.68.^[15]  She was not able to identify any further lawfully acquired income earned by the defendant during the analysis period.^[16] 

19. [19]
    As to unexplained wealth a comparison of Mr Truong’s lawfully acquired income and total expenditure for the analysis period is as follows:^[17] 

1. (a)
   Total expenditure: $567,377.80 
2. (b)
   Less lawfully acquired income: $248,405.45
3. (c)
   Unexplained wealth: $318,972.35. 

20. [20]
    From her analysis she can state that the defendant’s total expenditure exceeded his lawfully acquired income during the analysis period by $318,972.35.

21. [21]
    Ms Raabe gave evidence before me. In cross-examination she conceded she made a number of general assumptions coming to her opinion about betterment or unexplained wealth.^[18]  She accepted that ASIC searches of Rush Hour Transport demonstrated that the defendant was neither a director nor a shareholder and she based her assumption of his involvement in the business on a conversation between the defendant and police.^[19]  There were two bank accounts associated with Rush Hour Transport.  She conceded that her assumption was that any cash deposit made into the Rush Hour Transport account with no reasonable explanation was unexplained wealth.^[20]  She accepted she had no access or regard to the internal records of Rush Hour Transport, had no regard to the minutes or any other types of records which might explain how money was distributed by that company.  She had no understanding of the internal workings of Rush Hour Transport.^[21]  Apparently, BAS statements have not been filed by the company.  She made an assumption that anything which is around a number greater than $1,000 was not a genuine business deposit if it was cash.^[22]  She took into account that fact that the defendant mentioned in the transcript that 90 percent of his business would be credit card payments or payments to the bank account.^[23]  She agreed that her analysis period was between 1 January 2015 and 22 February 2016.^[24]  She didn’t dispute that with respect to the company’s accounts she had regard to deposits between 6 January 2015 and 5 February 2016.^[25]  The first transaction was on 2 January 2015 but the first Rush Hour Transport one was on 6 January 2015 for $7,000.^[26]  Ms Raabe is now aware that the charge period is 11 February 2016 until 22 May 2017 and the report was prepared before the charges were laid.^[27]  The last business deposit identified as unexplained wealth was in the sum of $2,200 on 1 February 2016.^[28]  She agreed that there were 36 transactions on account ending in 7916 (Rush Hour) between 6 January 2015 and 1 February 2016 which were unexplained wealth totalling $244,000.^[29] 

22. [22]
    Turning to account 04399 in the defendant’s name, the first unexplained income deposit was on 17 April 2015 in the amount of $9,070.^[30]  The last transaction on that account was on 14 May 2015.^[31]  There were a total of six transactions totalling $38,000 or thereabouts.^[32] 

23. [23]
    With respect to an account held by the defendant and his wife, account number 18454, the first cash deposit was in October 2015 and the last on 24 November 2015 totalling about $32,000.^[33]  The last transaction on account 7343 was on 5 February 2016. 

24. [24]
    In re-examination the witness said that she formed her opinion about Rush Hour Transport on other material which was set out in her affidavit, including the affidavit of Malcolm Stebbings.^[34]  She also listened to the recording of conversations which occurred during the execution of the search warrant.^[35]  She explained that she determined the defendant had effective control of Rush Hour Transport.^[36]  The only unexplained income during the trafficking period was the $20,000 seized on 22 February 2016.^[37] 

25. [25]
    I finally mention that exhibit K was tendered which sets out the list of cash deposits and the first and end date.

Crown submissions

26. [26]
    The crown submits that unexplained income evidence is routinely admitted in drug trafficking trials. It is submitted that the unexplained wealth accumulated between 1 January 2015 and 22 February 2016 but also overlapping the charged period is sufficiently proximate to and continued into the charged period and is admissible as part of the circumstantial case to prove that the defendant trafficked a dangerous drug.  The crown heavily relies on the decision of R v Quaile.^[38]  It is submitted that the evidence of the unexplained wealth goes to show the defendant’s illicit enterprise and profit during the proceeding time that continued on into the trafficking period. 

27. [27]
    With respect to the seizure of the cash on 22 February 2016, there was evidence that the co-accused, Mr Luong, had travelled to Sydney and returned to Brisbane on three occasions immediately prior to the execution of the search warrant where police found the single pound of cannabis and the cash.  The clear inference is that the drugs were sourced in earlier trips by Luong to Sydney and the cash was part of the business.

28. [28]
    In oral submissions Ms Shaw heavily relied on Quaile.  She also submitted that the evidence rebutted any innocent explanation for the $20,000 found during the police search. 

Defence submissions

29. [29]
    On the other hand, the defendant submits that Quaile is distinguishable.  It is submitted there is no relationship or nexus between the unexplained wealth or betterment that renders it relevant or probative of any fact in issue.  Its prejudice is very high.  Almost all of the financial evidence comes from a period well in advance of the alleged trafficking period.  It is not relevant. 

30. [30]
    In oral submissions the defence submitted that there must be a nexus between the trafficking period and the evidence to render it admissible. It was also submitted that on the evidence Ms Raabe did not take into account, and in fact had no idea, about the workings of the company. There was no direct evidence in this case of any drug dealing in the period. The $49,000 deposit on 17 February 2015 occurred a year before. Ultimately it was submitted that the deposits were not relevant to any fact in issue on this trial. It was not sufficiently proximate.

Discussion

31. [31]
    It is my opinion that the unexplained wealth evidence should not be admitted. This is with one exception. Subject to further argument about the admissibility of the $20,000 cash seized on 22 February, it seems to me that Ms Raabe’s evidence at paragraphs 45-51 of her affidavit is admissible.

32. [32]
    On the other hand, the cash deposits relied upon by Ms Raabe in this case occurred before the charged period. There is no direct evidence of any drug trafficking or drug transactions conducted by either Mr Luong or the defendant in that period. There is no evidence of any telephone intercepts, drug seizures or trips by Luong during that time or meetings with the defendant.

33. [33]
    Further, it is my assessment that Ms Raabe (with no criticism to her) did not know about the workings of the business. Even assuming if the defendant was in effective control, how could it be disproved that the cash payments were from lawful sources? There is insufficient evidence permitting an inference to be drawn that they were from drug dealing. One cannot simply say that he is charged with drug dealing after 22 February 2016, therefore it must have been the proceeds of drug dealing before that.

34. [34]
    I do not think the evidence is of reasonable probative value and it is significantly prejudicial and in the exercise of my discretion I exclude it.

35. [35]
    The parties referred me to R v Quaile.^[39]  I consider Quaile is distinguishable from the present case.  In Quaile it was clear that the transactions engaged in by the defendant at the hotel were drug transactions.  This could be determined because of the evidence of Newey and Swanson.  Newey gave direct evidence that he was a user of heroin.  He went to the Australian Hotel for the purpose of seeing the appellant to purchase heroin.  For about 10 days he and Swanson made purchases from the appellant just about every day.  Business was generally conducted at the Blue Heeler Bar and he paid the appellant in cash.  Swanson’s evidence was corroborative with that of Newey.  He confirmed the frequency of the attendances at the Australian Hotel and of the transactions.  The challenged evidence related to the evidence of surveillance police.  The charge period was between 27 October 1986 and 15 November 1986. 

36. [36]
    In June 1986 Detective McFarlan kept the defendant under observation for four and a half days. He saw numerous persons approach the appellant at the hotel, perhaps 8 to 10 times a day at the Blue Heeler Bar. He observed the appellant’s wallet from time to time and it always seemed to contain a large sum of money, namely 50s and 100s. There was other evidence from McFarlan that it was not uncommon for people making contact with the defendant to come into the hotel, speak to him, leave with him and either return or not return, or leaving the hotel without having a drink at the hotel bar. The witness, Sturgess, gave similar evidence to McFarlan. Plain clothes Constable McKay also gave similar evidence but at a later point.

37. [37]
    In those circumstances, Andrews CJ noted at p 111.50 that the evidence of the police showed a system of contacts between the appellant and numerous people at the Blue Heeler Hotel which went beyond mere social intercourse and stated “that standing alone of course would not carry the case any distance but, as I have already pointed out, it did not stand alone”.

38. [38]
    Andrews CJ noted that:

“This is a case where the evidence objected to is in my view necessarily admissible since the acts therein described were sufficiently mixed up with the history of guilty acts of which direct proof was tendered as to form part of one chain of relevant circumstances, and had it been excluded in the presentment of the case before the jury there was a risk that its intelligibility would be diminished and evidence of its not being subjected to proper appraisal.” 

39. [39]
    In my view, that case is different. The clear inference could be drawn from all of the circumstances, particularly bearing in mind the direct evidence that the appellant on many occasions had engaged in drug transactions at the Australian Hotel. That is not the case here. At most there is some suspicion about cash transactions but no other direct evidence. Indeed it is difficult to draw any inference as to drug dealing bearing in mind Ms Raabe’s lack of knowledge about the workings of the business.

40. [40]
    This is not a case where it is necessary for the unexplained wealth evidence to be admitted to render intelligible the allegations of trafficking. The case against the defendant otherwise appears to me to be strong, particularly in light of the Tripodi evidence which has been admitted.

41. [41]
    As I have said, in the circumstances, I have determined to exclude the evidence of Ms Raabe aside from the evidence concerning the cash seized on 22 February 2016 which can be the subject of further argument if necessary. 

Evidence of the cannabis found on 22 February 2016

Preliminary point

42. [42]
    A preliminary point has been raised as to whether the defendant is debarred from objecting to this evidence. The Crown submits that at the previous hearing on 23 July 2019 the court in effect already ruled upon the topic. It is submitted that at the hearing there was an acknowledgment by the defendant that the Crown was relying on the evidence of the search warrant and the cash and the drugs found on 22 February 2016.

43. [43]
    The defence on the other hand submits that the application filed by the defendant concerning the conviction in the Richlands Magistrates Court on 9 August 2016 was sufficient to encompass objection to evidence of the search. It is submitted that there was no argument as to the admissibility of the evidence. In those circumstances it is submitted there are special reasons to allow for the reopening of the ruling.^[40] 

44. [44]
    It is my view that in light of what transpired at the previous hearing I did not hear the defendant as to his real objection to the evidence.

45. [45]
    In those circumstances I consider the defendant has established a special reason and as such I reopen the ruling concerning the matter.

Background

46. [46]
    Turning then to the facts, the evidence reveals that on 22 February 2016 police executed a search warrant at the defendant’s address at 48 Gleneagles Crescent, Oxley.

47. [47]
    At the location one pound of cannabis was seized as was about $20,000 in cash.

48. [48]
    There were recorded conversations between Sergeant Stebbings and the defendant.

49. [49]
    The defendant told Sergeant Stebbings that he was self-employed and operated a small transport removal business.^[41]  He gave his phone number as 0420170970.^[42]  He admitted there was some marijuana in the house, just over half a pound in the top cupboard.^[43]  He said that he just smoked it.^[44]  He said that he paid $2,100 for the marijuana and it would last probably about a month.^[45]  He then admitted it was just over a pound.^[46]  He gave the number of the transport business.^[47]  There was then a discussion of the cash, the defendant admitting he had about $15 or $16 grand.^[48]  He said it was from cash jobs from the business.^[49]  He said he was going to be able to account for the money.^[50]  He said he should be able to produce receipts for it.^[51]  The defendant’s wife was spoken to and she said she did not know about the money that was located.^[52]  He then said some of the money was from gambling.^[53]  He said that he would have receipts or paperwork which explained where the money came from.^[54] 

50. [50]
    The cash ($20,780) was located in a draw beside the bed in the main bedroom and seized.

51. [51]
    Sergeant Stebbings in his affidavit says that the defendant told him the cash was from Rush Hour Transport; that his wife did the banking and the money had built up from cash jobs completed over the last two weeks. Sergeant Stebbings also says that there were a small quantity of clip seal bags, a large amount of rubber bands and pink lined paper with names and amounts next to them found at the draw. This might be regarded as a “tick” list.

52. [52]
    A drug analysis certificate discloses that the quantity of the drug was 433 grams.

53. [53]
    The defendant was charged with possession of cannabis and pleaded guilty to that charge in the Richlands Magistrates Court on 9 August 2016.  The police prosecutor read the facts to the court telling the magistrate that the cannabis was found.  There was no mention by the prosecutor of the tick lists, the rubber bands, the clip seal bags or the cash.  The defence solicitor informed the court that the cannabis was for the defendant’s personal use and the defendant had instructed him that he had ceased using it.  It was submitted a fine was appropriate.  The magistrate in sentencing the defendant accepted it was a timely plea noting it was a significant quantity but accepted there was no commercial element and treated the matter as a personal use possession.  The defendant was fined $2,000 with no conviction recorded.

54. [54]
    The Crown now wishes to rely on the possession of the cash and the cannabis as circumstances in the circumstantial case of trafficking against the defendant. As it turns out after the execution of the search warrant, the police investigation led to telephone intercepts which resulted in the obtaining of evidence of trafficking. Evidence was also obtained of Mr Luong’s trips to Sydney. This includes three trips preceding the execution of the search warrant on 11, 15 and 19 February 2016.

55. [55]
    Following the police search there was a significant period of time during which Luong ceased travelling to Sydney but he recommenced in May 2016 and communicated with the defendant.

56. [56]
    As I noted in the previous judgment, on 21 May 2017, Luong was intercepted with 103 kilograms of cannabis packaged in 231 Cryovac bags in his vehicle.

57. [57]
    The Crown submits the cannabis was packaged similarly to the cannabis located at the defendant’s premises on 22 February 2016.

Defendant’s submissions

58. [58]
    The defendant submits that it is an abuse of process for the prosecution to rely on the possession of the cannabis as a commercial possession relevant to the circumstantial case as it is vexatious, oppressive and unfair to do so. It is submitted it is inconsistent with the principle that a judicial determination is binding unless appealed, reopened, quashed or overturned. It is calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue. The defence heavily relies on Rogers v R^[55] as supporting its contentions.

Crown’s submissions

59. [59]
    The Crown on the other hand submits that there is no breach of any principle in relation to s 16 of the Criminal Code.  It is submitted that Rogers v R is distinguishable.  It is submitted that in the context of the case, it cannot be considered the Crown leading the evidence would be an abuse of process, vexatious, oppressive or unfair.

60. [60]
    The Crown submits that the evidence of the search warrant, the recordings with the applicant and the location of the money and drugs is part of the circumstantial case against the defendant in respect of the charge of trafficking. It submits:

1. (a)
   it can be linked inferentially to the three earlier trips of Luong to Sydney during the trafficking period;
2. (b)
   while there was only a one pound bag of cannabis located in the search it was the same amount and packaged remarkably similar to the 231 bags of cannabis seized from Luong on 21 May 2017;
3. (c)
   the $20,000 or so is comparable to the prices in code referred to by Truong in the telephone intercepts with Sydney drug suppliers in May 2017 – including reference to 19,000 and 18,000;
4. (d)
   Truong admitted to possession of the cannabis;
5. (e)
   Truong also gave his phone number (it was in incorrect order but the same numbers) which is one of the relevant numbers used to contact Luong.

61. [61]
    It is submitted the evidence from the search warrant is relevant, reliable and probative of the defendant’s conduct during the trafficking period. It is also submitted that statements made by the defendant as to the drug being for personal use are a lie and there is no basis for exclusion.

62. [62]
    At the invitation of the defence I listened to the recording of the execution of the search warrant. It may be arguable there are two more lies i.e. if the evidence of the $20,000 cash is admitted and the allegations by the defendant that the list of names was not his.

Disposition

63. [63]
    There is no doubt that in a drug trafficking case in the ordinary course evidence of drugs found in the possession of the accused may be lead at the trial as being relevant circumstantial evidence.^[56] 

64. [64]
    It must be noted that this is not a case for the application of either section 16 or 17 of the Code. The elements of the charges are different.^[57]

65. [65]
    It is my respectful opinion that this is not a case like R v Rogers. 

66. [66]
    In this particular case it is my assessment that the defendant was fortunate to be able to plead guilty to the charge on the basis of personal possession. The magistrate could only act on the facts which were placed before him. The cash was not mentioned in court at that time. Perhaps this was because of the assertions of the defendant at the time that the money came from the transport business.

67. [67]
    As it turns out, the investigation continued thereafter and significant evidence was obtained of the defendant’s involvement in the alleged trafficking thereafter.

68. [68]
    It is my view it would be incorrect to refuse to permit the Crown to rely on important pieces of circumstantial evidence where the police were not aware of their importance at the time but because of subsequent investigations their importance is revealed.

69. [69]
    I do not think this is a case of a scandal of conflicting decisions in light of the benefit the defendant received in the Magistrates Court. I think it would erode public confidence if the evidence was not admitted.

70. [70]
    I consider R v Rogers to be a different case.  In Rogers the appellant had been tried before the District Court on four charges of armed robbery.  The trial judge conducted a voir dire to determine the admissibility of the relevant parts of three records of interview.  The trial judge held on 19 October 1989 that the records of interview were not admissible because the Crown had not proved voluntariness.  At the trial the jury convicted Rogers on two counts and acquitted him of the other two.

71. [71]
    On 6 April 1992 a further indictment was presented before another judge containing further counts relating to another eight robberies. The appellant pleaded not guilty to each count. The Crown proposed to tender the records of interview which had been excluded in proof of counts on the new indictment. The appellant sought an order that the proceedings be permanently stayed on the ground that there would be an abuse of process. The stay was refused and the matter ended up before the High Court.

72. [72]
    It was held by the majority that the tender of the records of interview would be a direct challenge to the 1989 determination and in the circumstances would be an abuse of process.

73. [73]
    Mason CJ at p 256 noted that proceedings may be stayed if the continuance would be unjustifiably vexatious and oppressive for the reason it is sought to litigate a newer case which has already been disposed of by earlier proceedings. Considerations include the requirements of fairness to the accused, the legitimate public interest and the disposition of charges of serious offences and the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice. In the circumstances it was held that the attempted use of the records of interview was calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue.^[58]  Deane and Gaudron JJ gave similar reasons.

74. [74]
    In this case we have a different situation. The fact is the court is not concerned with the same charge. The court is concerned now with alleged significant trafficking. The possession of the cannabis forms part of the circumstantial case.

75. [75]
    It is true that there is some inconsistency between that decision and the factual basis upon which the Crown now intends to rely. However, I do not consider it is unfair to the defendant. As I say, he had the benefit of what was put before the Magistrates Court. The court was not apprised of the full circumstances of his involvement.

76. [76]
    In the circumstances I am not satisfied there is an abuse of process here and I dismiss the defence application to exclude evidence of the execution of the search warrant and the cannabis found.

77. [77]
    Mr Jones indicated in argument that he wished to further argue as to the admissibility of the cash found and conversations relating to the cash. I will entertain any further argument in that regard if the defence wishes to proceed with that argument.

78. [78]
    Relevant to that would be Ms Raabe’s evidence concerning the source of that money.

Orders

79. [79]
    My formal orders are:

2. 1.I exclude the evidence of Ms Raabe from the trial (aside from paragraphs 44-51).
3. 2.I dismiss the defence application to exclude the evidence of cannabis found and the search relating to the cannabis on 22 February 2016.