R v Christian[2012] QSCPR 3

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application to exclude evidence from the trial of Mr Christian who is charged, among other things, with trafficking in cocaine and supplying that drug to another person on seven occasions between 30 June 2009 and 28 August 2009.  The evidence sought to be excluded consists of covert recordings of conversations and dealings between three people, a Mr Masman, his partner, Ms McGuiggan, and another woman, Ms O'Dea.
2. [2]
   All the conversations occurred in the absence of Mr Christian and would be inadmissible as hearsay evidence unless they can be treated as coming within the Tripodi exception to the hearsay rule.  That exception allows the reception of such evidence where it can be shown that those other individuals were acting in pre-concert with the defendant.  As the High Court said in Tripodi v The Queen:^[1]

“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. … 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 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. 

3. [3]
   In Ahern v The Queen the Court said:^[2]

“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.”

4. [4]
   In this case Mr Lynch for the defendant applicant, Mr Christian, submits that the prosecution does not have “reasonable evidence” apart from the covertly recorded conversations, that Mr Christian was a participant in any combination or pre-concert to commit the crime. 
5. [5]
   The prosecution case is that the defendant and Ms O'Dea had the common unlawful purpose of trafficking in cocaine supplied by Mr Christian to Ms O'Dea and paid for by her with money received from Mr Masman.  Ms O'Dea and Mr Masman’s previous supplier was a Mr Fattal and the evidence sought to be excluded includes passages indicating that Ms O'Dea and Mr Masman wanted to obtain another source of supply.  There is little, if any, evidence, however, linking Mr Christian to any such conspiracy.  On the most generous view of the Crown case the following can be established:

• There were numerous calls and texts between a mobile telephone associated with Ms O'Dea and mobile telephones associated with Mr Christian over the alleged trafficking period. 
• On 6 July 2009 Ms O'Dea arrived at the Masman residence at about 10:30 am and went into the study where there was a sound which could be the counting of money.  She left that house and made a call to the accused’s phone number.  After about half an hour she called again.  Shortly after this she returned to the Masman house where Mr Masman greeted her outside and Ms O'Dea then left.  A minute later Mr Masman entered his study and immediately weighed a large bag of white substance alleged to be cocaine.
• On 9 July 2009 Ms O'Dea was covertly recorded making a telephone call from the Masman house to the number of a mobile phone associated with the defendant where she says: “I’m at the new clients.”  The prosecution case is that the conversation must refer to cocaine supply to Mr Masman and Ms McGuiggan but the defence submission is that it is not shown that Mr Christian was a party to the conversation nor that he was a supplier of cocaine to them.  It was submitted that an equally plausible scenario was that he was a client of Ms O'Dea who was supplying cocaine to him. 
• On 14 July 2009 Ms O'Dea called the accused’s number and ten minutes later arrived at the Masman house.  There were sounds that could be counting of money and Ms O'Dea left the house and 20 minutes later contacted the defendant’s telephone.  In the evening she sent a message to him and half an hour later arrived at the Masman house and provided Mr Masman with a further quantity of what is said to be cocaine which he placed on his desk in the study. 
• On 29 July 2009 Ms O'Dea left the Masman residence and about two and a half hours later was seen near Mr Christian’s residence and about 40 minutes later revisited the Masman residence. 
• On 6 August 2009 Ms O'Dea visited Mr Christian’s residence after visiting the Masman house some hours before and then went back to the Masman house where Mr Masman is then seen to take a bag of what looked like cocaine into his study. 
• On 14 August 2009 Mr Christian’s mobile telephone contacted Ms O'Dea’s.    She then went to the Masman house and later in the day called Mr Christian’s telephone number and, inferentially, spoke to him from the Masman house to change an appointment to 1:00 pm.  There are then further calls between their telephones and she leaves the Masman house and returns about an hour later. Shortly after that Mr Masman is again observed in his study smelling and tasting a large bag of white powder.
• On 28 August 2009 there were a number of telephone calls between the defendant’s telephone and Ms O'Dea’s telephone.  She goes to the Masman house about an hour after the last call.  There is some suggestion that she exchanges a bag of cocaine with Mr Masman and receives some drugs for herself.  He then takes the bag into his study. 
• Mr Christian was arrested on 29 October 2009 when police found him in possession of 10.542 grams of cocaine hidden in a concealed compartment in his car.  Police also discovered $24,250 in cash and a handgun and ammunition in his house.  The Crown submits that his possession of cocaine is independent evidence tending to support the existence of a cocaine dealing relationship between himself and Ms O'Dea. 

6. [6]
   Mr Swanwick for the prosecution submitted that this circumstantial evidence of the relationship where telephone calls between Ms O'Dea and Mr Christian were linked in time to the apparent delivery of cocaine by her to Mr Masman coupled with the other evidence to which I have referred constitutes reasonable evidence of a combination between those two to supply cocaine to Mr Masman.  He relied, in particular, on a decision of the Court of Appeal in R v Kelly^[3] where McPherson JA referred to the proposition that the frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude as unreasonable any other explanation or hypothesis than the truth of the fact to be proved, namely that, in this case, Mr Christian was the supplier of cocaine to Ms O'Dea pursuant to an arrangement that it be used in trafficking the drug to a third party. 
7. [7]
   On the other hand, Mr Lynch submitted that the only evidence able to be relied upon to establish an unlawful common purpose between Mr Christian and Ms O'Dea was the telephone contact between the mobile phones, the visits by Ms O'Dea to, or near to, the applicant’s residence on 29 July 2009 and 6 August 2009 and the possession by Mr Christian of the $24,250 together with the 10.542 grams of cocaine found in his vehicle on 29 October 2009.  He argued that I could not have regard to the evidence sought to be excluded to assist in determining whether a combination of the type alleged existed, relying on the passage in Ahern which referred to the existence of “reasonable evidence, apart from the acts or words, that the accused was also a participant.” 
8. [8]
   That proposition is correct but I would not exclude the circumstantial evidence of the timing of the calls between the mobile phones associated with Ms O'Dea and Mr Christian and the trips by her to or near his property with the subsequent visits by her to the Masman house, apparently with cocaine on her, from the admissible evidence relevant to the issue whether there was a combination of the type alleged.  That does seem to me to be potentially relevant to that issue and I did not understand Mr Lynch to object to it.  What concerns me in this case, however, is the lack of any clear evidence linking Mr Christian to an unlawful common purpose shared between him and Ms O'Dea. 
9. [9]
   For the purpose of meeting the test expressed in Tripodi and Ahern it seems to me that “reasonable evidence” could include the making of the telephone calls between the relevant mobile phones without strict proof that Mr Christian and Ms O'Dea were actually participants in the calls from those telephones.  There is evidence in respect of the two calls made by Ms O'Dea on 9 July 2009 and 14 August 2009 that were recorded, that shows that she was a participant in those calls but there is no direct evidence that either she or Mr Christian participated in the calls made by those telephones on other occasions.  Nonetheless I would be prepared to infer that there was reasonable evidence that they were likely to have been participating in calls to each other using those telephones. 
10. [10]
    There is not, however, any evidence of the content of those calls apart from the two calls I have mentioned and neither of those, Mr Lynch submitted convincingly, showed that Ms O'Dea was engaged or participating in an unlawful common purpose at all, let alone one of the type she allegedly shared with Mr Christian.  Nor do those calls prove Mr Christian’s participation in such a purpose.  The closest that the evidence comes to proof of such a purpose is Ms O'Dea’s reference to being at the “new clients”, but that could readily reflect the fact that they were her clients and, more importantly, does not establish by evidence admissible against Mr Christian that they were his clients or joint clients of both of them.  
11. [11]
    The text messages that have been recovered from the mobile phone which was located at Mr Christian’s residence do not indicate a common unlawful purpose of the type alleged.  The evidence of the visits by Ms O'Dea to the residence or the neighbourhood of Mr Christian, does not establish any actual contact between them.  Mr Lynch also pointed out that the visits by Ms O'Dea to Mr Christian’s residence and her later trips to Mr Masman’s residence were occasions where, for example, on 6 August 2009 she also visited another residence before attending Mr Masman’s residence.  Again, there is no evidence of her actually meeting Mr Christian on those occasions. 
12. [12]
    Mr Lynch also argued that Mr Christian’s possession of the money and cocaine on 29 October 2009, while suspicious, was not capable of proving, viewed either alone or in conjunction with the other evidence, that Mr Christian was involved in the trafficking or supply of cocaine with Ms O'Dea.  He pointed out that there was no linking of the money to the supply of cocaine to Ms O'Dea or anyone else and no evidence as to the source of the funds found on Mr Christian’s property.  Nor does the possession of the cocaine prove that he had sold it to Ms O'Dea or anyone else. 
13. [13]
    In the circumstances, having regard to the powers police have to investigate offences of this nature, it is surprising that no further warrant appears to have been sought to place a covert listening device in Mr Christian’s house or car.  In Kelly, for example, there was direct evidence of the presence of the defendant at the scene where the intermediary supplied the illegal drug,^[4] and a good deal of other evidence linking the drugs supplied to the defendant as well as the money for which they were exchanged.  Granted that would have been easier to prove in Kelly because the supplies there were to an undercover police officer who was providing the money that was traced.  There were also several telephone calls in which the defendant discussed the supply of the drugs directly with the undercover police officer to whom the drugs were being supplied. 
14. [14]
    While the circumstantial evidence of the closeness in time between the telephone calls and the apparent supplies of cocaine by Ms O'Dea to Mr Masman is also suspicious it does not seem to me that the combination of the evidence relied upon by the prosecution is such as to amount to “reasonable evidence” of a pre-concert with Ms O'Dea for her to traffic the drug to a third person.  There are real gaps in proof of any such pre-concerted arrangement between Mr Christian and Ms O'Dea and plausible alternative possibilities. 
15. [15]
    Mr Lynch submitted that an available inference was that Ms O'Dea was Mr Christian’s supplier, rather than the reverse.  That may be thought of as an available possibility but my main concern is the lack of evidence from which it can be established that there was a combination of the type alleged, particularly where it would have been open to those investigating these matters to attempt to establish proper evidence of such a pre-concert by further investigation.  In other words it does not seem to me that the evidence relied upon by the Crown can be said to be reasonable evidence to establish that issue. 
16. [16]
    Accordingly, I rule that all recordings of the conversations or dealings between Ms O'Dea, Mr Masman and Ms McGuiggan be excluded from evidence of the trial of Mr Christian.