R v Cosca[2016] QSCPR 7

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant has been charged with 11 counts of drug-related offences on a single indictment.  They include three counts of trafficking in methylamphetamine, one of those counts also referring to other drugs.  He has made an application under s 590AA of the Criminal Code for an order for “separate trials in relation to the current indictment before the court”.

The indictment

2. [2]
   The counts on the indictment are as follows:-

“Count 1:That between the first day of November 2012 and the ninth day of February 2013 at Forest Lake and elsewhere in the State of Queensland, BING CROSBY COSCA JR carried on the business of unlawfully trafficking in the dangerous drug Methylamphetamine.

Count 2:That on the fifth day of January, 2013 at Brisbane or elsewhere in the State of Queensland, BING CROSBY COSCA JR unlawfully supplied the dangerous drug Cannabis to another person.

Count 3:That between the nineteenth day of December 2013 and the twenty-ninth day of August 2014 at Brisbane and elsewhere in the State of Queensland, BING CROSBY COSCA JR carried on the business of unlawfully trafficking in the dangerous drug Methylamphetamine, 3,4-Methylenedioxymethamphetamine and Cocaine.

Count 4:That on the seventeenth day of February 2014 at Brisbane or elsewhere in the State of Queensland, BING CROSBY COSCA JR unlawfully supplied the dangerous drug Heroin to another person.

Count 5:That on the twelfth day of June 2014 at Calamvale in the State of Queensland, BING CROSBY COSCA JR unlawfully had possession of the dangerous drugs Alprazolam, Diazepam and a quantity of steroidal agent.

Count 6:That on the twenty eighth day of August, 2014 at Brisbane in the State of Queensland, BING CROSBY COSCA JR unlawfully had possession of the dangerous drug 3,4-Methylenedioxymethamphetamine.

and the quantity of the dangerous drug exceeded 200.0 grams.

Count 7:That on the twenty eighth day of August, 2014 at Brisbane in the State of Queensland, BING CROSBY COSCA JR unlawfully had possession of the dangerous drug Methylamphetamine.

and the quantity of the dangerous drug exceeded 2.0 grams.

Count 8:That on the twenty-eighth day of August, 2014 at Brisbane in the State of Queensland, BING CROSBY COSCA JR unlawfully had possession of the dangerous drug Cocaine.

and the quantity of the dangerous drug exceeded 2.0 grams.

Count 9:That on the twenty eighth day of August, 2014 at Brisbane in the State of Queensland, BING CROSBY COSCA JR unlawfully had possession of the dangerous drugs Diazepam, Testosterone, Growth Hormone and a quantity of steroidal agent.

Count 10:That on the twenty eighth day of August, 2014 at Brisbane in the State of Queensland, BING CROSBY COSCA JR had in his possession two mobile telephones, vacuum seal machine, vacuum seal plastic packaging, quantity of sim cards, quantity of clip seal plastic bags and two sets of electronic scales which were for use or had been used in connection with the commission of the crime of trafficking in a dangerous drug.

Count 11:That between the twenty second day of September, 2014 and the twenty seventh day of November, 2014 at Brisbane or elsewhere in the State of Queensland, BING CROSBY COSCA JR carried on the business of unlawfully trafficking in the dangerous drug Methylamphetamine.

3. [3]
   Originally the respondent pressed for the retention of count 5 and count 9.  Since the hearing, I have been advised that, as a result of the parties having agreed that another course is to be taken in respect of those counts, I do not need to determine whether these counts are properly included in the indictment. 
4. [4]
   Notwithstanding the width of the application, the applicant’s submissions make clear that he accepts that counts 1 and 2 are properly joined in a single indictment; and counts 3, 4, 6-8, and 10 would also be properly joined in a single indictment.  His contention therefore is, in effect, that there should be three separate indictments for the counts which remain in issue; and accordingly three separate trials.  Accordingly, I shall refer to the period to be dealt with in each of these proposed indictments as the first, second, and third periods of offending or trafficking respectively.

Statutory provisions

5. [5]
   The statutory provision on which the applicant expressly relies is s 567(2) of the Criminal Code.  However, that is a qualification on s 567(1), and it is accordingly appropriate to set out both provisions, as follows:-

“567Joinder of charges

3. (1)
   Except as otherwise expressly provided, an indictment must charge 1 offence only and not 2 or more offences.

3. (2)
   Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.”

6. [6]
   In his submissions, the applicant has made reference to the “real danger of impermissible prejudice if all counts were faced together”.  The respondent has taken that to show reliance on s 597A(1) of the Criminal Code, which is in the following terms:-

“597ASeparate trials where 2 or more charges against the same person

3. (1)
   Where before a trial or at any time during a trial the court is of opinion that the accused person may be prejudiced or embarrassed in the person’s defence by reason of the person’s being charged with more than 1 offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any 1 or more than 1 offence charged in an indictment the court may order a separate trial of any count or counts in the indictment.”

Submissions

7. [7]
   The applicant submitted in his written outline that the only tenable basis for the joinder of all of the counts is to be found in that part of s 567(2) which refers to the charges forming “part of a series of offences of the same or similar character”.  He submitted that the evidence relevant to each of the trafficking offences was not admissible on either of the other trafficking offences.  The prima facie rule is that evidence of the commission of an offence other than the offence charged is inadmissible against an accused person, consistent with Sutton v The Queen^[1].  Relying on Pfennig v The Queen^[2] he submitted that the evidence relating to one trafficking count did not show that “high degree of probative force” necessary for its admission in respect of each of the others.  Its admission would be potentially prejudicial to the applicant.  The submission pointed to what were said to be differences between the evidence relating to each of the counts of trafficking.  It was said there was “a real danger of impermissible prejudice if all counts were faced together”.
8. [8]
   In oral submissions, by reference to R v Cranston^[3], it was emphasised for the applicant that for this part of s 567 to be satisfied, it was necessary both that the charges should be of a similar character, and that there should be a nexus between them.  An appropriately liberal exercise of the discretion to sever is called for in doubtful cases.  The discretion to sever should be exercised when “the level of prejudice to the accused, involved in trying them together, intrudes sufficiently strongly.”  It was submitted orally that there was no commonality between the three periods of trafficking, which involved different time frames, different persons, and different modi operandi.
9. [9]
   The applicant’s Counsel appeared to accept that, in each of the three cases, the offending had a common purpose, namely the making of a profit from the business of selling drugs.  Nevertheless the charges should not be laid in the same indictment, because of the prejudicial effect of the evidence relevant to one period of trafficking, in respect of the other charges. 
10. [10]
    It was orally submitted, by reference to R v KP; ex parte Attorney-General of Queensland^[4], that separate trials should be ordered in respect of the three trafficking episodes.  The evidence relating to one episode was not admissible in respect of the others, because it would result in impermissible prejudice to the applicant, as a result of the risk of a jury engaging in propensity type reasoning rather than similar fact type reasoning.  Reference was also made to Sutton v The Queen^[5].  The test for the admissibility of similar fact evidence is to be found in Pfennig^[6] and Phillips v The Queen^[7].  The submission emphasised the interval of time separating the first and second trafficking period.
11. [11]
    It was submitted that the respondent’s reliance on Harriman v The Queen^[8] was misplaced, that being a case decided on its own facts.  R v O'Neill^[9], also relied upon by the respondent, did not deal with the question of whether counts were properly joined.
12. [12]
    For the respondent, it was submitted that the second and third periods of trafficking were properly described as a series of offences of the same or similar character.  The interval between them was explained by the fact that the applicant was in custody in this period.  They had a common purpose, namely, to make money from commercial dealings in illicit drugs.  The differences between the two periods, relied upon by the applicant, did not lead to a different conclusion.
13. [13]
    Likewise the inclusion of the first period of the trafficking on the indictment was proper.  The interval of time between the first and second periods is explicable by the fact that the first period ended when Mr Kuzmanovic was arrested; and the second period commenced with the commencement of telephone intercepts involving the applicant.  The first period formed part of a series of offences of the same or similar character; and the offending in this period was also committed for the prosecution of the same purpose.
14. [14]
    It was accepted, by reference to Ludlow v Metropolitan Police Commissioner^[10], that it was necessary to show a nexus between the offences, being a feature of similarity which enables the offences to be described as a series.  The “character” of the offences refers to their “legal character”, or their legal definition; but in addition it was necessary to show sufficient factual correlation between the offences so that they may fairly be described as a series, relying on the judgment of Dawson J in De Jesus v The Queen^[11].  A narrow approach must not be taken to determining whether there is a sufficient nexus between the offences, in accordance with what was said by Lord Pearson in Ludlow^[12], and with R v Collins; ex parte Attorney-General^[13].  Relevant matters for determining whether the test was satisfied were identified by Macrossan J in R v Cranston^[14] as including the time, place and other circumstances of the offences, and their legal character or category.
15. [15]
    For the respondent it was submitted that the onus fell on the applicant to identify the prejudice arising from the joinder of the charges, in order to justify severance under s 597A of the Criminal Code.  The applicant’s written submissions did not do that.  This not being a case of sexual offending, questions relating to the type of prejudice that is said to arise in such cases do not arise in the present case; and to the extent that any prejudice would arise, it could be addressed by jury directions, which, consistent with R v Ferguson; ex parte Attorney-General (Qld)^[15], will be followed by the jury.
16. [16]
    It was also submitted that the evidence for each period of offending was admissible to establish the offending in the other periods.  It is apparent from Phillips and Pfennig that it is not necessary to show “striking similarity”, “underlying features”, “underlying unity”, or a “system” or “pattern” in relation to the offending.  Brennan J identified in Sutton^[16] that the cogency of the evidence from other periods of offending “is to be ascertained by reference to the whole body of proof in the case, viewed in the light of experience”.
17. [17]
    The evidence related to the first period showed that the applicant engaged in large scale commercial activity in relation to illicit drugs, purchasing methylamphetamine in quantities of multiple ounces.  The evidence relating to the second period showed the applicant selling large quantities, consistent with the scale of the purchases.  Thus the evidence, taken together, demonstrated the improbability of the applicant’s being innocent of offending in either period.  This approach is consistent with the decision in Harriman and the decision in O'Neill.
18. [18]
    It was submitted that, consistent with what was said in R v Patel^[17], offences may constitute a series of the same or similar character, notwithstanding that the evidence admissible on one is not admissible on others said to constitute the series^[18].
19. [19]
    It was submitted that the difference in the evidence for the first and second periods did not matter, because they dealt with different aspects (purchases in the first period, and sales in the second) of drug trafficking.  The significance which might otherwise attach to the interval between the first period of trafficking and the second period of trafficking was diminished by the nature of the evidence for the latter period: it did not suggest the commencement of some new operation.  In any event, the evidence showed unlawful trafficking activity over a lengthy period of time; and the trafficking offences were not each constituted by a single act, but rather by a course of conduct.
20. [20]
    No one submitted that the allegations amounted to a single offence of trafficking in dangerous drugs.

Evidence of offending

21. [21]
    The application proceeded on the basis that the evidence expected to be adduced in the case was adequately identified by a Schedule of Facts prepared by the respondent, and accompanying documents described as Annexure A and Annexure B.
22. [22]
    For the first period of offending, the primary source of evidence is Mr Kuzmanovic.  The Schedule suggests that there may be some supporting evidence as a result of telephone intercepts and surveillance.  Mr Kuzmanovic worked for another person, Piet Ta, who, in late 2012 and early 2013, was involved in a large scale wholesale business of selling drugs, predominantly “ice” or crystallised methylamphetamine.  Mr Kuzmanovic would deliver drugs to and collect money from customers of Mr Ta, the customers including the applicant.  Between November 2012 and February 2013, the applicant obtained a total of approximately 137 ounces of crystallised methylamphetamine from Mr Ta, through Mr Kuzmanovic.  The drugs were supplied on eight occasions, usually in quantities of 10 ounces or 20 ounces; though on one occasion the quantity was eight ounces, and on another it was nine ounces.  The applicant paid $8,000 per ounce for the crystallised methylamphetamine, the total amount paid in this period being a $1,096,000.  On occasion, the drugs were initially supplied on credit.  When payments were made by the applicant, the amounts ranged from $80,000 to $160,000.
23. [23]
    Count 2 is the charge of supplying a pound of cannabis.  The Schedule of Facts indicates that Mr Ta wanted to see if the applicant could sell cannabis and cocaine, and he supplied the applicant with the cannabis through Mr Kuzmanovic.  Mr Kuzmanovic brought the applicant to meet Mr Ta, the latter saying that he wanted the applicant to try to move drugs for him.
24. [24]
    From this evidence it is contended that the applicant was engaged in the business of selling crystal methylamphetamine, probably in quantities of an ounce.
25. [25]
    This evidence came to light as the result of an investigation in part focused on Mr Ta which came to an end on 13 February 2013, when police executed a search warrant at Mr Ta’s residence.  I would infer that the supply of drugs by Mr Ta through Mr Kuzmanovic ceased at that point to be feasible.
26. [26]
    The second and third periods of offending spanned the 11 months from December 2013 to November 2014.  However, the applicant was in custody for about three weeks from late August 2014 to mid-September 2014.  In the 11 month period, the applicant used 16 telephone services, many in false names, and associated with false addresses.  Police also conducted physical surveillance of the applicant, and carried out tactical intercepts relating to him and others.  They installed an electronic surveillance device in a unit in an apartment building in George Street, Brisbane.  They also executed search warrants at addresses of the applicant and his associates.  Many of the telephone communications used code, it being alleged that they referred to drug transactions.  They are said to indicate 77 occasions on which drugs were supplied in the 11 month period, and a further 11 occasions on which the applicant offered to supply drugs.  (Recourse to Annexure A indicates 77 supplies in the second period of offending; and a further six supplies in the third period.)  Drugs supplied were usually methylamphetamine (7.486 kilograms) and MDMA (18,000 tablets).  Typically, the quantities of methylamphetamine which the applicant supplied were a number of ounces, though on one occasion he supplied a kilogram, and on another, half a kilogram, of that drug.  The MDMA tablets were supplied in quantities of 10,000, 5,000 and (on three occasions) 1,000 tablets.  There was also a supply of an ounce of heroin on one occasion (together with two ounces of methylamphetamine); and the supply of quantities of cocaine on three occasions, one for $8,500 and the other two involving four ounces and two ounces respectively.  Annexure A identified the telephone intercepts and codes used which are the main source of the evidence of these transactions, though there is some supporting surveillance evidence and CCTV footage.  Annexure B appears to be an interpretation of some of this evidence.  However, on one occasion the applicant was recorded as saying, “I’m here selling drugs”.  Frequently the applicant made use of “runners” in relation to these transactions.  Some examples of the communications were given in the Schedule.
27. [27]
    In addition, police intercepted Mr Escalante, said to be a runner for the applicant, on 28 March 2014, at which time he was in possession of $12,500.  On 12 June 2014, police located $15,500 in a couch at the residence of the applicant’s girlfriend.  The applicant’s unit was searched on 28 August 2014, when $63,380 was located in a Nike bum bag, $78,950 was found in a Gucci cloth bag, and a further sum of $145,695 was located.  In addition, the applicant’s mobile phone contained a document said to be a “tick sheet”, recording drug debts totalling $383,800.  The document in fact recorded names and numbers, and the amounts and the fact that they were drug debts appear to be matters which the prosecution would invite a jury to infer.  In the course of the search, the police also located bags of tablets and crystalline substance, some of which were packed in bags containing an ounce of material, which contained methylamphetamine in varying proportions, equivalent to more than 600 grams pure methylamphetamine.  The applicant’s mobile phone contained other evidence indicative of drug transactions.  The police located a set of electronic scales, a cryvac machine, cryvac bags, and a further set of electronic scales.
28. [28]
    The third period of trafficking is alleged to have commenced shortly after the applicant’s release from custody on 19 September 2014.  The evidence appears to come primarily from telephone intercepts and the like, with some support from surveillance evidence and a police intercept.  It is said that this evidence revealed seven supplies made by the applicant through the agency of a Mr Daine Walker to a Mr Feao, of quantities of methylamphetamine.  Where the quantity can be identified, it is said to be two ounces, or on one occasion, three ounces.
29. [29]
    The police intercepted Mr Walker on 18 November 2014.  Mr Walker had been seen at the applicant’s address at about 9.30pm.  Shortly after, Mr Walker went to an address associated with Mr Feao.  A little later, Mr Walker was intercepted.  He had been in possession of clip seal plastic bags containing some three ounces of white crystal substance, equivalent to a little over two ounces of pure methylamphetamine.
30. [30]
    From this limited summary of the evidence, it will be apparent that the fundamental issue is whether the applicant engaged in the offending conduct.  It is not a case where it is clear the offending conduct had occurred, and the only real issue was the identity offender.
31. [31]
    It will also be apparent that much of the evidence relating to the first period of offending is testimonial evidence from Mr Kuzmanovic.  His credit is very likely to be in issue.  It is apparent that the prosecution will rely on the evidence for the other two periods as corroborating the evidence of Mr Kuzmanovic.  The bulk of the evidence for the second and third periods comes from telephone intercepts.  The prosecution will rely on the evidence of Mr Kuzmanovic to assist in identifying the true nature of these communications.

Cross-admissibility issues: some general principles

32. [32]
    It is convenient to commence by noting that evidence of unlawful conduct of a defendant, other than that the subject of a particular charge, to which I shall refer as “other unlawful conduct”, maybe be advanced in proof of the charge on a number of bases.  I propose to refer only to two of them.
33. [33]
    The first is apparent from the judgment of Dixon J in Martin v Osborne^[19].  In that case, the defendant was charged with driving a motor vehicle on a public highway, for the purpose of carrying passengers for reward at separate distinct fares for each passenger, without an appropriate licence^[20].  There was direct evidence that on the date alleged in the information, the defendant drove a motor vehicle from Melbourne to Ballarat, in which travelled a number of apparently unrelated persons.  A body of circumstantial evidence was admitted, including evidence of the defendant’s conduct on the previous two days, when he had used the motor vehicle to convey apparently unrelated persons between those two cities.  The issue was whether the evidence was rightly admitted.
34. [34]
    Dixon J held the evidence to be admissible.  His Honour considered the evidence not to be admissible on the basis that it tended to establish “moral tendencies … (or) proneness to acts or omissions of a particular description …”^[21]  His Honour said^[22],

“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.”

35. [35]
    In that case, the critical fact in issue was whether the vehicle was, at the time charged, being used to carry passengers for reward.  The events over the three days referred to in the evidence made that likely to be so on the occasion identified in the charge.  His Honour considered that the evidence showed the car was engaged in “a regular course of business”, making it improbable that, at the time charged, the passengers were not carried for reward.  It seems to me that this may be characterised as a case where the other conduct relied upon was used to establish a pattern of conduct, which in turn demonstrated the true nature of the conduct the subject of the charge.
36. [36]
    The other purpose for advancing such evidence to which I shall refer is to establish a characteristic of the defendant, said to make it more likely that the defendant is guilty of the offence charged.  This characteristic is commonly described as a “propensity”, though Cross^[23] favours the term “disposition”.  I shall refer to evidence intended to demonstrate such a characteristic as “propensity evidence”, which seems to reflect the language used in a number of the authorities.
37. [37]
    In Australia, it is now accepted that propensity evidence is relevant to the question whether the defendant is guilty of the offence charged.  In Perry v The Queen^[24] Gibbs CJ said,

“Evidence that an accused person has a propensity to commit crimes of the sort with which he is charged, or is the sort of person who is likely to commit such crimes, would ordinarily be regarded as relevant to the question whether he did commit the offence in question.”

38. [38]
    Nevertheless, relevance is not sufficient to secure the admission of such evidence.  In Perry, Gibbs CJ continued^[25],

“Such evidence is excluded, not because it is irrelevant, but because it is likely to be unfairly prejudicial to the accused.”

39. [39]
    Since the decision in Makin v Attorney-General (NSW)^[26] it has been held that such evidence is, subject to a significant qualification, to be excluded. 
40. [40]
    In Perry, Gibbs CJ explained the statement that such evidence would be “unfairly prejudicial” by saying^[27], “a jury might attach too much importance to it”^[28].  Similarly in this context, Mason CJ and Dean and Dawson JJ said in Pfennig v The Queen^[29],

“The prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused.”

41. [41]
    It is now abundantly clear that in certain circumstances, propensity evidence is admissible to establish the guilt of a defendant.  In Harriman^[30] Dawson J stated the law to be that “… propensity evidence is admissible as such, but only if it is of sufficient strength to outweigh the prejudice which it inevitably carries with it.”  That is consistent with the judgment of the three members of the Court in Pfennig, cited earlier^[31].
42. [42]
    As I understand it, the test for the admissibility of propensity evidence is formulated in Pfennig, as explained in Phillips v The Queen^[32].
43. [43]
    Cross^[33] states the rule to be that propensity evidence

“… will not be admitted unless it has sufficient probative force to outweigh or transcend its prejudicial effect, and it will not do this unless there is no rational view of the evidence consistent with the innocence of the accused in the context of the prosecution case”.

44. [44]
    In Phillips^[34] two further considerations for the application of the test were stated.  The first was that it is necessary to view the similar fact evidence in the context of the prosecution case.  The second was that in determining the admissibility of the propensity evidence, the trial judge must act on certain assumptions.  The assumptions are that the similar fact evidence would be accepted by the jury as true; and that the prosecution case might otherwise be accepted by the jury.  It was also pointed out that the trial judge is not required to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the charges; but the evidence must be excluded if, so viewed, there is a reasonable view of the similar fact evidence which is consistent with the innocence of the accused.
45. [45]
    Notwithstanding that the question is whether the evidence is admissible, the test which a judge must apply in answering that question is the same test as a jury must apply when determining guilt, namely, to ask whether there is a rational (or reasonable) view of the evidence that is consistent with the innocence of the accused^[35].  If there is, then the evidence of other offending should be excluded.
46. [46]
    In R v WRC^[36] Hodgson JA expressed the view that the test requires the assumption that the other evidence in the prosecution case, although accepted by the jury, leaves the jury with a reasonable doubt about the guilt of the accused.  To be admissible, the propensity evidence must be such that, when added to the other evidence, it would eliminate such a doubt.  The judgment of Hodgson JA has received authoritative approval on a number of occasions^[37].
47. [47]
    To the extent to which it might be said that a question arises in relation to an onus, it might be noted that in Sutton^[38] Deane J said that it is for the prosecution to demonstrate that evidence of this kind comes within the exception to the fundamental rule which would otherwise exclude it.

The second and third periods of offending

48. [48]
    The evidence of the third trafficking period consists primarily of a series of messages^[39], apparently extracted from mobile phones by use of technology described as “Celebrite”^[40], though there are also some telephone intercepts and surveillance and the physical intercept by police officers.  As mentioned, this evidence is said to demonstrate the supply by Mr Feao to Mr Walker of not insignificant quantities of methylamphetamine on six occasions.  Prior to the first occasion, the applicant sent a message to Mr Walker, the effect of which was that Mr Walker was to contact Mr Feao.  After the second supply there were communications involving the applicant, commencing with an inquiry of Mr Feao as to what he gave Mr Walker the previous night; and otherwise capable of being read as relating to a transaction between Mr Feao and Mr Walker on that occasion.  The body of communications otherwise associates the applicant with transactions between Mr Feao and Mr Walker.  The communications are often in code, and are consistent with the transactions alleged.  The physical intercept showed Mr Walker to be in possession of three ounces of substance, equivalent to a little more than two ounces of pure methylamphetamine, shortly after a meeting between Mr Feao and Mr Walker, with the applicant supplying Mr Walker with the address.
49. [49]
    This body of evidence rather strongly points to a series of transactions in which Mr Feao, under the direction of the applicant, supplied methylamphetamine to Mr Walker in exchange for substantial sums of money.
50. [50]
    The general character of the evidence of the second period of trafficking may be said to be broadly similar, although the applicant conducted a number of the supplies himself; and there is surveillance evidence (including visual recording at the applicant’s unit in Casino Towers) for some of this offending.  The application of the Pfennig test would require the assumption that the jury accepted the evidence relating to the third period, but that it is not satisfied beyond reasonable doubt of the trafficking in the second period by the evidence directly relevant said to demonstrate the transactions alleged in the second period.  Since much of the evidence for the third period is real evidence, it seems to me that a question as to its truth is unlikely to arise.  The real issue will be whether it demonstrates the defendant’s involvement in drug trafficking.  In HML v The Queen^[41] Heydon J associated this assumption with a passage from Hoch v The Queen^[42], as a basis for testing whether the cogency of the evidence warranted its acceptance.  It seems to me that the cogency of circumstantial evidence of other offending can only be tested if it be assumed that a jury would draw the inference for which the prosecution contends, at least where that inference is reasonably available.  Adopting that approach, it seems to me that when the totality of the evidence is considered, there is no reasonable explanation for it other than that the applicant was engaged in drug trafficking, including in the second period.  On that basis, I would conclude that the evidence relied upon in relation to the third period of trafficking is admissible in respect of the charge of trafficking in the second period^[43]. 
51. [51]
    I would, nevertheless, reach the same conclusion, simply by reference to the evidence relating to the third period.  The probative force of that evidence arises from the absence of any innocent explanation for the communications in that period, particularly in light of the coded nature of the communications, the sums of money referred to and the otherwise unexplained quantities referred to in the communications; supported by the evidence resulting from the police interception of Mr Walker.  I was told, without objection, that there is evidence that Mr Feao attended at the unit utilised by the applicant for his drug storage and for the making of some supplies during the second period^[44] but he was not himself identified as carrying out particular sales^[45].  I also note the recording of Mr Feao’s name in the applicant’s Samsung mobile phone in a way said to show him to be a customer who had not paid his drug debts.  It seems to me that these matters would add to the cogency of the evidence of the events in the third period, but they are not as significant as the other matters which I have mentioned.
52. [52]
    If one were to consider the evidence of events in the second period, in relation to proving the trafficking in the third period, then assuming the evidence to be accepted, it would have even greater cogency.  Using the same reasoning, I would reach the same conclusion.

The first period of offending

53. [53]
    The evidence in support of the offending in the first period comes primarily from Mr Kuzmanovic.  It may receive some support from an analysis of the applicant’s finances, but that support, it seems to me, is rather limited, when the amount of the unsourced income is compared to the quantities of drugs which it is alleged the applicant purchased in this period.  If accepted, the evidence of Mr Kuzmanovic would establish the purchase of a very substantial quantity of methylamphetamine by the applicant in a period of about three months.  It is highly unlikely that the quantity was purchased for personal use; and there is no coherent explanation for the purchase of so much methylamphetamine, other than for the purpose of trafficking in that drug.
54. [54]
    Again, I commence by assuming that the evidence of Mr Kuzmanovic may be accepted by the jury; but they are not satisfied beyond reasonable doubt that it demonstrates the applicant’s involvement in trafficking in methylamphetamine.  The question then becomes whether the evidence relating to the second and third periods would remove that doubt. 
55. [55]
    The primary proposition advanced on behalf of the applicant was that too great an interval of time separated the first period from the later periods.  That is plainly a relevant factor^[46].
56. [56]
    Amongst other matters referred to in the applicant’s submissions were the fact that different drugs were involved; there were different central characters; and there is no evidence as to the identity of customers of the applicant in the first period, and so no correlation with the customers in the later periods.
57. [57]
    On the other hand, it appears to me to be a matter of some significance that the only drug referred to in the evidence of Mr Kuzmanovic is methylamphetamine.  That is the primary drug referred to in the later periods.  The fact that some other drugs were also sold, does not appear to me to be a matter of great significance.
58. [58]
    The transactions in the first period were purchases.  Those in the later periods were (at least primarily) sales.  In my view, such a difference is not of any real significance, the latter being complementary to the former and confirming the inference which it seems to me is to be drawn from the quantities of drugs referred to in Mr Kuzmanovic’s evidence.
59. [59]
    It seems to me that the fact that the primary drug sold in the later period was methylamphetamine, and the quantities which were then sold, provides strong support for the evidence of Mr Kuzmanovic.  The evidence of the later period demonstrates sales of methylamphetamine consistent with its purchase in the quantities referred to by Mr Kuzmanovic.
60. [60]
    While the time interval has some effect on the cogency of the evidence, it is not particularly great.  There has been no suggestion that some event which occurred in this interval which would, or might, show that the evidence of events in the later periods is of no assistance in determining whether to accept the evidence of Mr Kuzmanovic.  Indeed, no hypothesis was advanced which might explain the evidence of the later periods, in a way that might be consistent with the innocence of the applicant of trafficking in the first period.  Nor is such an explanation apparent, particularly when “the necessity to view the similar fact evidence in the context of the prosecution case”^[47] is recognised.^[48]
61. [61]
    In my view, any doubt which might remain about whether the evidence of Mr Kuzmanovic establishes that the applicant engaged in trafficking in the first period would be removed by the evidence relating to the later periods.  That evidence, it seems to me, is strongly corroborative of the evidence of Mr Kuzmanovic.  It is thus admissible in respect of the offending in the first period.
62. [62]
    In considering whether the evidence of Mr Kuzmanovic is admissible in relation to the allegations of trafficking in the later periods, I am required to assume that Mr Kuzmanovic’s evidence is to be accepted.  It seems to me clear that, on that assumption, any doubt arising from the evidence of the later periods would be removed.
63. [63]
    Accordingly, I am satisfied that the evidence of trafficking in the later periods is admissible in respect of the charge for the first period; and that the evidence of Mr Kuzmanovic is admissible in respect of the charges of trafficking in the later periods.

Joinder of charges

64. [64]
    It has been authoritatively established that if evidence in support of one charge is admissible in support of another, the two charges form a series for the purpose of s 567 of the Criminal Code^[49].  It follows that the joinder in the indictment of the charges relating to the three trafficking offences was proper.  It has not been suggested that if that were so, the joinder of the other charges (save for counts 5 and 9) was not proper.
65. [65]
    It appeared to have been conceded on behalf of the applicant that there was a common purpose to the trafficking and related offences, sufficient to justify their joinder.  A question might arise about the level of particularity at which the purpose is to be identified, for the application of this part of s 567.  In view of the conclusion I have reached, it is unnecessary to pursue this question further.

Severance

66. [66]
    The only matter advanced in support of a submission that separate trials should be ordered under s 597A of the Criminal Code was prejudice.  In Sutton^[50] Brennan J stated that the power should be exercised where the evidence admissible on one count in the indictment is not admissible on another, and in consequence there is a real risk of impermissible prejudice to the defendant.  Since I have held that the evidence for each period is admissible in relation to the offending alleged in the other periods, that proposition has no application.  If my findings are correct, no purpose would be served by the severance.

Conclusion

67. [67]
    I have concluded that the evidence in support of each trafficking charge is admissible in proof of the others, by the application of the tests in Pfennig.  It has been unnecessary for me to consider whether it is so admissible on some other basis, for example, by analogy with Martin, or on the basis identified in R v Domokos^[51].
68. [68]
    The application should be dismissed.