R v Handlen[2014] QSC 40

SUPREME COURT OF QUEENSLAND

Background

[1] The applicant, Mr Handlen, is charged with two counts of importing a commercial quantity of border controlled drugs, one count of possession of a commercial quantity of border controlled drugs and one count of attempted possession of a commercial quantity of border controlled drugs. The possession charge (count 2) concerns the first importation (count 1), while the attempted possession charge (count 7) concerns the second importation (count 6). The prosecution case in respect of the importation charges is that Handlen was a party to those offences committed by Matthew Reed in that he aided, abetted, counselled or procured the commission of the principal offences (by Reed).

[2] It is pertinent to note that in respect of count 7, the particulars are as follows:

1. Between 8 and 20 September 2006, communicating with Reed and Paddison at various times concerning the progress of clearance and delivery of the shipping container and issues relating thereto.

2. On 17 September 2006, and at other unspecified times, contributing money to meet costs associated with clearance and delivery of the container.

3. On 14 and 15 September 2006, instructing Reed and Paddison to unload the monitors from the container and leave them in Unit 18 pending the defendant’s making enquiries about the process of clearance.

4. Meeting with David Perry at the Colmslie Hotel on 18 September 2006 and at the Jubilee Hotel on 20 September with a view to discussing the process of clearance of the container.

5. On 20 September 2006, instructing Reed and Paddison to make an inspection of the monitors.

6. Between 8 and 20 September 2006, meeting with Shen, and communicating with him by phone and email concerning the progress of clearance and delivery of the shipping container.

The application

[3] The applicant brought an application seeking a ruling that the evidence contained in a number of telephone calls intercepted in September 2006  be excluded as hearsay or alternatively in the exercise of the discretion. The conversations are listed in the document headed “telephone intercepts” attached to the respondent’s submissions.  It is convenient to refer to them by the number designated in that document. The objections taken concerned the following:

1.Conversations between the defendant and Dennis Paddison – Calls 12, 29, 34, 37, 58 and 66. 

2.Conversations between the defendant and Michael Taylor - Calls 28, 36, 52, 57, 64, 65, 69 and 72 and including one SMS message (number 40).

3.Conversations between the defendant and David Shen - Calls 31, 50, 61, 62, 63 and 68.

4.Conversations between Reed and Paddison – Calls 4, 6, 9, 27, 41, 46 and 49.

5.Conversations between Reed and Scott Dunlop - Calls 23 and 32.

6.Conversations between Reed and “Gavin” from Hertz - Call 71.

The applicant’s submissions

[4] The following general grounds were put forward by the applicant for objecting to the evidence:

Irrelevant hearsay

[5] The applicant’s primary submission was that the evidence contained in all of the conversations was hearsay, which did not fall within any exception to the hearsay rule and on that basis should be excluded.  In support of its argument, the applicant referred to the articulation of what is hearsay evidence, in Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 969:

“Evidence of a statement made to a witness by a person who not himself called as a witness may or may not be hearsay.  It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.  It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.” 

[6] The applicant noted the flexibility referred to in Walton v R (1989) 166 CLR 283 by Mason CJ at 293-294, in relation to telephone conversations where the dangers which the rule seeks to prevent are not present or are negligible (see also Deane J at 308). However, the rule applied where there was an implied assertion in a spontaneous (and otherwise seemingly reliable) statement and it was submitted that in the present case, there was evidence that the defendant would exaggerate, such that reliability was not apparent. Nor was it the case that the mere presence of a defendant rendered a conversation admissible. The challenged conversations remained inadmissible hearsay statements that did not come within an exception to the hearsay rule.  The evidence could not, for instance, be admissible on the basis of joint criminal enterprise: Handlen v R (2011) 245 CLR 282.  Nor, according to the applicant, did the conversations form part of the actual offending.   

[7] It was also submitted that some evidence appeared to have no other relevance than to support the evidence of Reed, as prior consistent statements by him.  An example of this objection was said to be the evidence concerning the hiring of a vehicle from “Gavin” at Hertz (Call 71) and arranging to borrow a forklift from Scott Dunlop (Calls 23 and 32), which are discussed below.  It was argued that, while evidence of “corroboration” would be admissible from independent sources, evidence of conversations by Reed himself did not fall into this category.  This was especially so where the person who was the other party to the conversation was not being called as a witness.

[8] The applicant argued, even if some exception to the hearsay rule applied, the challenged evidence had no relevance to the facts in issue and therefore was not admissible.  In that respect, the relevance of many of the conversations to the facts in issue, either as to the evidence of the principal offence by Reed, or as to any aiding or procuring by Handlen was challenged.  Evidence of conversations after the fact did not amount to such aiding or procuring.  It was submitted that evidence of conversations with Michael Taylor (who was not being called as a witness) had no relevance, either temporal or actual, to the charges against the defendant.  The same applied to conversations involving “Gavin” and Scott Dunlop.  The statements or assertions contained in those phone calls did not form part of the actual offending.

Unfairness

[9] An alternative basis for objection to all the impugned conversations was that a party, and in some cases both parties, to the conversation were not themselves being called as a witness.  It was argued that the failure to call a party to a conversation meant that there could be no testing of that evidence by cross-examination; for example, as to whether the conversation may have occurred in a particular context or related to a particular subject matter not relevant to the charges.

[10] It was submitted that the statements were unreliable and unable to be fairly assessed by the court. The prosecution was seeking to have the jury infer some criminal context, that could not be properly tested (or tested at all), since a party to the conversations, which were not made on oath, was not available to be cross examined.  Moreover, it was said that the evidence contained in those conversations was equivocal and not necessarily relevant to any criminal activity by either Reed or by the defendant.

[11] It was accepted that the situation was different, for example, to conversations between Reed and Barrett, and between Reed and Wallace, where both parties are being called to give evidence. And in those circumstances, no objection was taken to the evidence of those conversations.

The prosecution’s submissions

[12] The prosecution noted that the objections concerned intercepts recorded between 12 and 20 September, after the drugs had been discovered (on 8 September) and removed from the monitors.  The prosecution contended that, broadly speaking, the intercepts, sought to be adduced as evidence, manifested interest in the process of clearance and delivery of the container, the task of unloading the container (to be performed by Reed and Paddison), and concern over whether delays in delivery were cause for concern. 

[13] The recorded conversations were, the prosecution argued, relevant to the attempted possession charge (count 7).  But it was also argued that they were capable of giving rise to inferences of the defendant’s participation in the second importation of drugs (count 6), and, through references to “last time” and the “first time”, of participation in the first importation (count 1).

[14] In relation to count 7, the prosecution submitted that it was necessary to prove that the defendant had control over the disposition of the monitors,[1] believing them to have contained drugs;[2] that is, proof was required of both the conduct element and the fault element of belief in the presence of drugs. The conduct element of count 7 concerned Handlen’s exercising control over the disposition of the monitors during the charged period (8 to 20 September 2006).  It extended to statements by the defendant exhibiting control over the monitors and/or the actions of others, who were handling the monitors, and encompassed financing of expenses related to the movement of the container from the wharf to unit 18, instructions on storing the monitors in the warehouse, and control over the timing of the next activity, being retrieval of the drugs.

[15] The Crown argued that, in respect of 21 of 30 conversations objected to, the defendant was a party to the conversations and, on the Crown case, those conversations contained statements which, were incriminating and relevant to proof of one or both of the elements of count 7.  In that respect, they were not hearsay, but went to prove the defendant’s interest and participation in having the monitors at unit 18, or related matters. The prosecution relied on the statement of the hearsay rule in Subramaniam as supportive of its submissions.  The Crown argued that the hearsay rule was not engaged in the case of the conversations to which the defendant was a party.  Evidence of what a person was seen to have done, or heard to have said, either before, during, or after the commission of an offence was admissible if it was probative of the charge.  In tendering evidence of a defendant’s statements, the Crown did not set out to prove the truth of all that was said. In the present case (assuming relevance), it was the fact (in context) of what the defendant said, that incriminated him and made his statements admissible. And if there was evidence in the conversations that Handlen had lied on one or more occasions to an interlocutor, that would not affect the admissibility, if the statement was relevant and probative. 

[16] As to the conversations to the category of conversations to which the defendant was not a party, the Crown argued that the hearsay rule is not engaged as they were relied on circumstantially, not testimonially: R v Perry [2011] QCA 236 at [30]-[35].

Consideration

[17] I do not consider that the challenged conversations should be excluded.  I shall deal with them in turn.

Conversations between the defendant and Michael Taylor (Calls 28, 36, 40, 52, 57, 64, 65, 69 and 72)

[18] The Crown submitted that in order to consider the admissibility of the conversations between the defendant and Taylor, the calls between Reed and the customs brokers, to which objection is not taken (Calls 3, 7, 8, 10, 19, 20, 24, 25, 42, 44), should be borne in mind. Those calls, it was said, showed that Reed was in contact with customs brokers to arrange to clear the container and have it delivered to the warehouse, that delays were being experienced which were attributed to fumigation of the container, and that, as a result, delivery was rescheduled several times.

[19] The Crown case was that this became a source of concern to the defendant and that the defendant made arrangements through Taylor to seek information from David Perry.

[20] Paddison was instructed by Handlen (in Call 12) that they would not “work” (which on the Crown case meant extract drugs from the monitors) until he had made “a couple of inquiries over why it took so long”.  Paddison had received “the nod” from a meeting scheduled for 18 September (in Call 34).  The Crown submitted that, although Perry was not named, he could be identified from the context by reference to his travel arrangements.[3]  A similar instruction was given to Reed in Call 15: “just handle the warehousing”, and “I won’t know until I have this meeting … if there’s a reason why we should be on our toes”.

[21] It was submitted that Calls 28, 36, 40, 52 reflected arrangements between Handlen and Taylor for Handlen to meet with Perry on the afternoon of 18 September to discuss the container. I accept that that evidence is relevant as going to proof of the fault element of belief in the presence of drugs.

[22] In Call 28 (on 16 September at 10.55) Handlen approved Taylor’s proposal that he will catch up with “Dave” “tomorrow arvo”.  The applicant submitted that the identity of “Dave” is a matter of interpretation.[4] The prosecution accepted that may be the case, but argued that viewing the sequence of communications with Taylor as a set, in conjunction with the meeting involving Taylor, Perry and Handlen on 18 September, the contention that “Dave” was Perry was capable of acceptance by the jury.[5] 

[23] In Call 36 (on 16 September at 18.55), Handlen again approved an arrangement by which Taylor would “touch base” with “buddy” the following day (Sunday) from about 2.00 pm.  The applicant submitted that the call about a meeting with “buddy” was vague and cryptic. The Crown argued that the purpose of the meeting was made plain by the defendant. It pointed to Handlen’s identification of the information which Taylor was to seek from “buddy”; that is, “ask [buddy’s] opinion on how things are working down there … I just want to know exactly” and “if he can retrace the steps that have happened in the last few days.” There was also the statement: “… number one should be if it’s not uncommon for what’s going on right now then I shouldn't be really too concerned about it but I do want him to retrace … and then we’ll sit down and have a meeting together … I just wanted to go over a couple of things before Monday with buddy there.” Handlen alluded to a meeting to occur the following Monday (the 18th) and indicated that he was keen to have information before then. 

[24] The text message SMS Call 40 from Taylor took place on Sunday afternoon (17 September at 3.52 pm -  which it was said roughly corresponded to his meeting with “Dave”) in which Taylor sought details of the container.

[25] In Call 52 (on 18 September at 13.18), Handlen and Taylor discussed meeting “in the lobby” in “fifteen”.  Thereafter, police observed Taylor collecting Handlen at Coolangatta and taking him to the Colmslie Hotel where they met with Perry for about 40 minutes.  Photographs were taken of the meeting. Handlen took to the meeting an email he had sought from Reed containing details of the container in question. (The email, later found on Handlen’s person when he was arrested, had Perry’s fingerprint on it.)

[26] Call 57 (on 18 September at 18.11), the Crown contended, took place after the meeting with Perry, by which time Handlen had also had the opportunity for discussions with Paddison.  In the call, Handlen instructed Taylor to call his partner (Rose Moschetti) and tell her “everything’s fuckin awesome … say it three times”.  Handlen, Paddison and Reed were seen by police in heavy celebration for the balance of that night.  The Crown submitted that the recording was relevant to the defendant’s belief about drugs being in the monitors.

[27] The calls on 20 September (Calls 64, 65, 69 and 72) were relied upon as reflecting arrangements for Handlen to receive further information from Perry that day and to meet with him at the Jubilee Hotel.  The prosecution contended Handlen’s arrangements with Perry were circumstances relevant to the timing of the anticipated activity of extracting drugs from the monitors, which was contingent upon Handlen’s enquiries.  I accept that they are also relevant to proof of the fault element.  In that regard, the Crown relied on Call 64 as Handlen seeking information from Taylor, “what did your friend have anything to say”.  Five minutes later he received information from Taylor (inferentially, the Crown says, from Perry) that “… he said eh no problem from what he can see anyway … from what he can see no dramas”.  A few minutes later, Handlen conveyed his satisfaction to Paddison, culminating in the instruction to “get busy”.  The Crown relies on Call 65 as conveying that Handlen did get “the nod” from Perry (via Taylor) on the morning of 20 September.  That fact it is said was conveyed by Handlen to Paddison shortly after in Call 66, when Handlen approved Paddison’s query “do you want me and cover up boy (Reed) to get busy? … soon as he gets here I’ll tell him what to go to work?”  The Crown submitted that that call accounted for activities later on 20 September, of buying duffle bags to carry the drugs, attempting to hire a vehicle for transport, and Reed and Paddison going to the warehouse to make a preliminary inspection of one monitor, all in preparation for the extraction that was to follow imminently. While the instruction issued in Call 66 is relied on by the Crown as part of the actus reus of the attempted possession offence, Calls 64 and 65 are relied upon as giving significance to that instruction.

[28] The Crown’s submissions should be accepted. I see no basis for the evidence to be excluded.

Conversations between the defendant and David Shen (Calls 31, 50, 61, 62, 63 and 68)

[29] Shen is alleged to have been a representative of domestic distributors, and Handlen’s interface for transfer of the drugs after importation.  The Crown referred to Reed’s evidence of Shen’s interaction with Handlen for that purpose in the aftermath of the first importation.  The Crown submitted that, in the aftermath of the second importation, Handlen was recorded in communication with Shen, allegedly for a similar purpose.  The Crown alleged that in the following communications, Handlen gave Shen progress reports on the receipt of the style of information he was seeking from Perry, the implication being that the transfer of the drugs would not occur until he was satisfied that he had “the nod”.  This was said to be relevant to proof of control over the monitors and the defendant’s state of belief about drugs. 

[30] The Crown argued the potentially incriminating relevance was evident from the captions below:

• Call 31 – 16/9:  Handlen reports to Shen that he has already had a preliminary indication from his source (Perry) that all is well but that he will “have the answer” following his meeting on Monday (18/9).
• Call 50 – 18/9 at 12.21 pm: Handlen and Shen discuss in coded terms whether there will be occasion to celebrate that night.  Handlen promised to report by calling Shen at “eight tonight”.  Later that afternoon Handlen proceeded to the Colmslie Hotel with Taylor to meet with Perry.  That meeting was concluded by 5.00 pm.
• Call 61 – 18/9 at 9.16 pm: The terms of Handlen’s report to Shen following the meeting with Perry indicates that Handlen had considered the apparent disturbance of the monitors by the authorities, but that he was satisfied he had a “clean bill of health”.
• Call 62 – 19/9 at 4.05 pm: As reflecting Handlen’s continuing intention to seek further information (“research”) form his “friend” (Perry) about the container.
• Call 63 – 19/9: Handlen advises an expectation of further information the following day (which the drown says was from Perry), but referred to the monitors having been in “disarray” (from the Customs inspection as “a good sign not a bad sign”. He advises Shen that the monitors had “been in hand for days but I told everyone to relax until my friend gives me the word” (on the Crown case Perry).
• Call 68 – 20/9 at 12.26 pm: Arising form positive information from Perry, via Taylor, earlier that day (Call 65), Handlen gave Paddison and Reed approval to “get busy” (in Call 66) ie., make preparation for the drug extraction.  Handlen conveys the positive information to Shen in code “the providence on that bottle is very good right so I’m heading up there right now” (ie., travelling from the Gold Coast to Brisbane to take up with Paddison and Reed).

[31] The Crown submitted that the conversations were not being led to establish bad character or to prove an uncharged offence involving Shen, as the applicant seemed to contend.  Rather, if as the Crown alleged, Handlen was coordinating with Shen for a transfer of the drugs, or some of them, that would enhance the case that he attempted to possess them for the purpose of such a transfer, and would also be probative of the fault element.  The Crown argued that there was no relevant unfairness arising simply because the conversations were potentially incriminating. The defendant would have an opportunity to give evidence himself explaining their contents, or to contend for an innocent explanation when addressing the jury. 

[32] I accept that the evidence is at least probative of the defendant’s state of mind and thus admissible. Nor should it be excluded in the exercise of the discretion, where the defendant is able to give evidence should he chose to and counsel is able to put forward the defence case as to the conversations in its address.

Conversations between the defendant and Paddison (Calls 12, 29, 34, 37, 58 and 66)

[33] As stated, the Crown relied on Calls 12, 29 and 34 (communications Handlen had with Paddison) as referrable (in part) to instructions to Paddison to warehouse the monitors after unloading the container and then to wait for the results of Handlen’s enquiries from Perry.

[34] Call 12 has been referred to previously. In it Handlen states, “I sent ding dong an email this morning I want him to check it before you guys work tomorrow”. The applicant contended that the call is relied on to prove that Handlen did in fact send an email to Perry and therefore testimonially. The Crown submitted that the reference by Handlen to having sent an email was not the aspect relied on as significant (and in any event, it was likely that the recipient referred to was Reed, not Perry).  Rather, the Crown submitted that the significance lay in Handlen’s awareness and understanding of the “work” to be performed the following day (which, it was said, matched Calls 4, 6 and 9 already referred to) and his instruction in relation to the manner of its performance. The Crown argued that additional significance arose from Handlen’s declared intention to defer further “work” until he had made “a couple of enquiries”.  The Crown submitted an instruction of this kind constituted the actus reus of count 7. The applicant on the other hand contended that it was an act prior to attempting to possess and thus not part of the res gestae of count 7. I accept the Crown’s submissions that the evidence is relevant to proof of the conduct element.

[35] The Crown relied on Call 29 (16/9 at 10.57 am), as indicating Handlen’s discussion of finances and bills to be paid, for which he accepted responsibility.  It matched a similar earlier discussion with Reed.  The applicant argued that the statements were hearsay and not overt acts constituting part of the res gestae of count 7.  The Crown argued that statements by Handlen accepting responsibility for payment of expenses associated with moving of the container from the wharf to unit 18 were manifestations of his control over the disposition of the monitors and therefore part of the conduct of commission of the offence. The Crown also relied on the part of the conversation that proceeded to a discussion of delay in concluding an unspecified event of mutual interest (alleged to be retrieval of the drugs), as showing Handlen’s control over the timing of the event referred to (eg, “so I was gunna put things off another week until I had a meeting but dude got back from Singapore yesterday so …”). I accept the force of those submissions.

[36] In Call 34 (16/9 at 4.48 pm), there is a reference to “the last time”. The applicant argued that that could not necessarily be construed as a reference to counts 1 and 2 as there was also a container in between which was alleged to contain no drugs. But the principal significance of Call 34 arises from the fact that the timing of Paddison’s checking out of his accommodation was contingent on information which Handlen was expecting to receive: “I’m still waiting for … the nod from someone there” (allegedly a reference to the information he is arranging through Taylor to seek from Perry).  I accept that the communication is relevant to both the conduct and fault elements of count 7.

[37] As to Call 37 (17/9 at 9.43 am), the Crown submitted it contained statements indicating that Handlen was in charge of the disbursement of money for expenses and that he was supervising Reed in that respect: “I’m kinda looking forward to checking his invoices out”; and “I don’t know what the fuck he’s paying for but I’m looking forward to seeing it on paper”. The Crown argued that the call was relevant in that at pages 106 to 107 it provided evidence from which to infer Handlen’s control over finance for expenses associated with clearance and deliver of the container, eg: “I’m looking forward to checking his invoices out,” and “I’m looking forward to seeing it on paper”.  There was also what was said to be Handlen’s more explicit comment at page 108 on that subject, “I gotta pay … a bunch of fees at the office so and that’s apparently seventy five” and has the same quality as similar declarations of financial responsibility, at pages 35-36 and 77.  The applicant contended that the call was sought to be relied on for the truth of the assertions. I consider that the evidence is pertinent to proof of the conduct element.

[38] The Crown submitted that Call 58 (18/9 at 6.13 pm) reflects arrangements for Reed to meet with Handlen and Paddison at Caxton Street, where they were subsequently seen celebrating. It was preceded (at 6.11 pm), by Handlen ringing Taylor (Call 57), and directing him to call Handlen’s partner to tell her “everything’s fuckin awesome, say it three times please”.  The three were later seen drinking there and apparently in celebration during the evening.  Calls 57 and 58, and the surveillance observations of celebrations that evening, follow Handlen’s meeting with Perry at the Colmslie Hotel earlier that afternoon.  They accompany Handlen’s account to Shen the same night (Call 61 page 158): “everybody’s happy … they went though it with … a fine tooth comb … it’s a clean bill of health”.  The applicant disputed the relevance of the call. I accept the Crown submission that Call 58 is relevant to the fault element of count 7.

[39] The Crown relied on Call 66 (20/9 at 10.35 am), as indicating that, having received positive information from Taylor some minutes earlier, Handlen gave approval for Paddison and Reed to “get busy” and “go to work” ie., make preparations to extract the drugs from the monitors. As already stated, the instruction issued in Call 66 is relied on by the Crown as part of the actus reus in respect of count 7 and I accept that it is admissible in that respect.

Conversations between Reed and Paddison – Calls 4, 6, 9, 27, 41, 46, 49

[40] The Crown relied on Calls 4, 6, 9, 27 and 41 as showing arrangements, and as delays occurred, rearrangements, to carry out a job of “work” the timing of which coincided with anticipated delivery of the container to unit 18. 

[41] The applicant argued that with respect to Calls 4, 6 and 9 between Reed and Paddison, the conversations were hearsay in that the calls are being relied on as proof of a fact narrated in them. Nor did they form part of the res gestae, as they preceded any overt act of attempting to posses.

[42] In Call 4, there is a statement “we’ll work on Thursday morning” and the reply “cool”. In Call 6, there is the question “are we still on for tomorrow?” and the answer “No Friday”. In Call 9, the statements are, “we’re working tomorrow” and “I don’t know the exact time yet I’m waiting for the um the drivers to figure it out”. 

[43] The Crown contended that Calls 4, 6 & 9 were able to be relied on as original evidence of the existence of an arrangement between Paddison and Reed for the performance of a task of work at a certain time.  It was submitted that as the sequence unfolded, the task could be identified as the unloading of the container.  The existence of the arrangement and the timing for its performance was a circumstantial fact which identified the subject matter of Handlen’s discussion of the “work” to be performed on 15 September, referred to in Call 12 .

[44] The Crown submitted that the significance of Call 27 was in the amendment to the arrangement between Reed and Paddison for the timing of the “work”, which comprises the unloading of the container.  It was argued it also further confirmed the subject matter of the “work”.  The unloading of the drugs in fact occurred on 18 September.  As with calls 4, 6 and 9, the Crown sought to rely on this call as circumstantial evidence.  The Crown submitted that, notwithstanding the applicant’s contention, mention by Reed of “buddy”, although very likely a reference to Handlen, was insignificant to its case.  There were ample statements directly made by Handlen being instructions relating to the monitors and what Reed and Paddison should do with them, without need to resort to testimonial use of such comment by Reed.  However, its was pointed out that since Reed would be called as a witness, he could be asked to confirm the identity of “buddy” and what he had been told, and be cross-examined about it.

[45] In Calls 46 and 49 on 18 September, Reed and Paddison arranged to proceed to the warehouse where, from about noon, they were seen unloading the container and warehousing the pallets.  This was the subject of police surveillance.  The fact that the arrangements were made between Reed and Paddison, the timing of the “work”, and the inference that the “work” represented the unloading, were argued by the Crown to be circumstantially relevant to interpret and give content to the defendant’s instructions[6] on how to go about the “work”, and to attend to the “warehousing” only whilst he made enquiries of Perry. The communications are not hearsay but relevant circumstantial evidence. In advancing that submission, the Crown relied on the following dicta of Dixon CJ, Fullagar and Windeyer JJ in Tripodi v The Queen (1961) 104 CLR 1 at 7:

“It is customary at criminal trials 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 its usefulness.  But often enough in an ordinary case where there is no confederation or preconcert, directions, instructions or 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.” (Emphasis added)

[46] Reliance was also placed on Ahern v The Queen (1988) 165 CLR 87 at 92, where the High Court explained that regard to the presence or absence of a defendant may be seen as an attempt to state the effect of the hearsay rule in practical terms, but said that as a “rule of thumb … it is clear that it has a limited application”. Where substantive offences such as the present are charged, statements and actions of persons other than the defendant, third party arrangements and the like commonly comprise relevant circumstantial facts: R v Mbonu (2003) 7 VR 273 at 279. The applicant argued that the conversations were inadmissible hearsay in which Handlen did not participate. Nor was could they be admitted on the basis of joint criminal enterprise. As was observed in Tsang v DPP (Commonwealth) (2011) 255 FLR 41 at [35]-[41], evidence of statements or activities of a defendant may be led where it is relevant as part of the surrounding circumstances, ie circumstanctial evidence independent of any allegation of common purpose. The Crown is correct in its submission that the evidence may be relied on as relevant circumstantial evidence.

Calls 23 and 32 Reed and Dunlop

[47] In Call 23 Reed arranged to borrow a forklift from a neighbour at the warehouse for “Saturday” ie, 16 September, at a time when arrangements were being made for a special delivery of the container on the weekend.  The Crown relies on the existence and timing of that arrangement as a circumstantial fact that assists to identify the “work” that Reed and Paddison were to perform.  That argument was also advanced in respect of Call 32, concerning Reed’s attempt to reschedule the loan of the forklift for Monday 18 September.

[48] In respect of Call 23, the Crown submitted additionally, that it would, in any event, be permissible for Reed to use a contemporaneously recorded conversation to refresh his memory, so as to give evidence of that event or surrounding events.

[49] The evidence is clearly relevant and I do not consider it ought to be excluded.

Call 71 – Reed and Hertz

[50] As already stated, in Call 66 Handlen authorised Paddison and “cover up boy” (according to the Crown a reference to Reed) to “get busy” and “go to work”.  The Crown submitted that the nature and content of that instruction is a fact in issue.  On the Crown case, it was the signal to prepare to extract the drugs from the monitors.  The Crown pointed to that instruction being preceded a few minutes earlier by positive information from Taylor in Call 65, the receipt of which was the cause of delay to that point in the extraction activity.  It submitted that the instruction was also followed by a range of activities carried out by Reed, Paddison and Nerbas.  That is the purchase of duffle bags, the attempt by Reed and Nerbas to hire a vehicle for transport; and the inspection of a monitor at the warehouse.

[51] The Crown argued that evidence of the carrying out of these activities, whether direct from Reed, or from other sources circumstantially, was capable of giving meaning and content to the instruction given in Call 66.  Reed’s call to Hertz, and surveillance of him and Nerbas visiting various car yards that afternoon, was evidence of one of the activities of preparation for recovery of drugs alleged on the Crown case to have been authorised by Handlen.

Order

[52] I am satisfied that the evidence should be allowed to be led for the reasons advanced by the Crown. The applicant has not demonstrated that the conversations are objectionable hearsay. Nor do I consider that that any of the conversations objected to ought to be excluded in the exercise of the discretion.

[53] The application is dismissed.