R v Siriphan[2018] QSCPR 3

SUPREME COURT OF QUEENSLAND

1. [1]
   NORTH J: The applicant is charged that between the eighteenth day of October 2010 and the fifteenth day of November 2012 at Brisbane and elsewhere he carried on the business of unlawfully trafficking the dangerous drug methylamphetamine. He applies pursuant to s 590AA(2)(e) of the Criminal Code 1899 (Qld) for a ruling to exclude evidence that the prosecution seeks to rely upon. The application as filed^[1] sought to exclude evidence from intercepted communications made outside the presence of the applicant, secondly to exclude evidence in certain paragraphs of a statement by a witness, Max Vincent, and thirdly to exclude certain paragraphs of Vincent’s statement on the basis that it constitutes inadmissible opinion evidence. At the hearing I made a ruling, for reasons given then, that the hearsay opinion evidence be excluded so the third part of the application does not have to be further considered.
2. [2]
   Further at the hearing in the context of submissions made by the parties counsel reached an agreement concerning much of the evidence subject of the first part of the application with the result for reasons that I will explain a formal ruling is not necessary. The case against the defendant is substantially circumstantial. The prosecution case is that the applicant, who resided in Sydney, supplied methylamphetamine to one Thompson who trafficked in that drug in Brisbane. The prosecution case relies upon evidence falling into certain categories which include evidence of airline and rental car travel between Brisbane and Sydney on occasions when it is alleged that Thompson or others acting on his instructions met with the applicant or others acting on his instructions when methylamphetamine was supplied to Thompson or his agents. The prosecution case also relies upon evidence from bank transactions, telephone intercepts and conversations. The details of these circumstantial events or activities are set out in a spreadsheet document (Exhibit 1) and it was by reference to that document that senior counsel for the applicant identified particular intercepted communications that objection was taken to. In the course of the hearing counsel for the prosecution conceded that a number of intercepted communications were inadmissible and indicated they would not be relied upon by the prosecution. The particular communications subject to this concession are set out in a schedule attached to these reasons and marked “A”. Ultimately at the hearing the position was that in light of the concessions made by the prosecution the defence counsel did not seek to press for the exclusion of any other communications though he reserved the right to take objection if, upon further consideration, it appeared any were inadmissible. In submissions it became apparent that it was likely the legal representatives would be able to agree upon any other discreet objections so this issue was left on the basis that it would be the subject of agreement between the parties before trial.^[2] 
3. [3]
   The remaining issue concerns the evidence objected to in the statement of the witness Max Vincent. As filed the application sought:

“Evidence in the statement of Max Vincent at paragraphs 16-17, 22, 27, 29-30, 32, 39, 41, 46 and 49 is not admissible on the basis that it is hearsay and does not fall within any exception to the hearsay rule.”

4. [4]
   At the hearing counsel for the respondent tendered a copy of the statement which highlighted the words or conversations objected to.^[3] In a schedule of facts tendered at the hearing^[4] the thrust of the prosecution case is set out. In summary it is alleged that Thompson first met the applicant in 2010 at an arranged meeting at a house in Sydney. Thereafter Thompson and or his associates travelled to and from Sydney by plane and car to deliver money and collect drugs from the applicant. Thompson’s flatmate, Max Vincent, assisted in couriering the drugs and money on a number of occasions during this period.
5. [5]
   In his statement Vincent says^[5] that he knew Thompson (to whom he referred to as “AJ”) for a number of years and was aware that Thompson was supplying drugs to different people. He observed people arriving and Thompson apparently supplying them with drugs. He did not know or associate with the customers but Thompson would often tell him what he was doing and he told Vincent that he had been selling methylamphetamine before they met. In his statement Vincent says that he can recall an occasion in February 2010 when he travelled with Thompson to Sydney to attend a sporting event. Whilst in Sydney Thompson told him that he had to go to meet someone and Vincent accompanied him as the driver. Ultimately Vincent drove to a residential house which Thompson entered while Vincent waited accompanied by some Asian persons in the garage area. When Thompson emerged he told Vincent that he had just met a new contact and that this person was called “Jack” and that Jack was going to be a contact for him sourcing drugs.^[6] Vincent says that over the next few months Thompson made a few trips to Sydney and that he would return with what appeared to be drugs. Thompson told him that he was going down to see Jack and that he often referred to this person as “Jack”, “Jackie” or “Jacko”.^[7] According to Vincent later in 2010 he accompanied Thompson when they flew down to Sydney. On arrival they collected a rental car and Vincent drove to an address in the Fairfield area and when the car was stopped outside the house another car pulled up behind them. Thompson had a bag with a large sum of money, about $50,000, in it. He alighted from the vehicle and got in to the car stopped behind. Vincent said that he could not see who or how many people were in the car. Thompson was in the car for about ten minutes before he returned. On returning Thompson told him he had met with Jack and Vincent says that he observed that Thompson appeared to be holding a bag that contained about ten to twenty ounces of a substance that he said resembled “chards of ice”.^[8]
6. [6]
   Vincent^[9] says in about February 2011 he accompanied Thompson when they travelled to Sydney to a sporting event and stayed at the Casino. When in Sydney Vincent said he drove Thompson out to the same house at Fairfield when on arrival Thompson told him to wait in the car. Thompson went to the front door of the house and Vincent observed Thompson being met by a man whom he could now recognise as Jack.^[10] According to Vincent Thompson had told him that he was going to see Jack and on return to the vehicle Thompson told him that he had collected some ice but Vincent could not say whether he was shown the substance.^[11] Vincent goes on to say that on the occasion of this visit to Sydney when staying at the Casino an Asian male came to the hotel room for a party. Thompson introduced Vincent to the man calling him Jack.^[12] According to Vincent’s statement this was the first occasion that he met with the person Thompson called Jack.
7. [7]
   Thereafter Vincent says that he made trips to Sydney at Thompson’s request when he was not accompanied by Thompson. On one occasion, a few months after the trip to Sydney where he stayed at the Casino, Thompson asked Vincent to go to Sydney for him.^[13] By this time he said he could recall that Thompson had said that he owed money to Jack and was not able to pay all the money. Thompson gave Vincent a bag containing some money and he flew to Sydney and rented a car. Vincent says that he drove out to the same house at Fairfield that he had visited on the previous trip.^[14] Upon arrival, after a phone call, Vincent says that he saw Jack open the door of the house whereupon he, Vincent, went up to the house and inside and met with Jack. Vincent says that he handed the bag containing the money to Jack. According to Vincent Jack said that he could not supply any more drugs to Thompson as Thompson needed to repay more money.^[15]
8. [8]
   Later in about June 2012 Vincent says he accompanied Thompson on a trip to Sydney. They flew to Sydney and rented a car. This time Vincent drove to an address at Chipping Norton. On arrival Vincent parked the car and stayed with the car while Thompson got out of the car and entered the house. On the way Vincent said he could recall Thompson talking about seeing Jack at the house. Vincent did not see who Thompson met with as he stayed in the car the whole time.^[16] Later that month Vincent says that he flew to Sydney accompanied by a person called Luke at the request of Thompson. They flew to Sydney, hired a car and drove to the address at Chipping Norton. On arrival Vincent says that he stayed in the car whilst Luke went into the house with a bag of money. Vincent did not know who Luke met with because he stayed in the car. According to Vincent when Luke returned he had in his possession about five ounces of a substance that he believed to be methylamphetamine.^[17] A few weeks later^[18] Vincent says that Thompson arranged for him to fly to Sydney with some money to deliver. According to his recollection he took approximately $46,000.^[19] Before leaving he was told by Thompson that he had to meet with Jack at the house at Chipping Norton. On arrival in Sydney Vincent says that he hired a car and drove to the address unaccompanied. On arrival he was met at the front of the house by an Asian male who he did not know. He handed this person the cash and in exchange received a small package that he said contained methylamphetamine. 
9. [9]
   Vincent’s last journey to Sydney occurred a few weeks later. He accompanied Thompson who told him that the purpose of the trip was to drop money off and that they were going to see Jack. The pair flew to Sydney and hired a car and drove to the address at Chipping Norton. On arrival Vincent says that he stayed in the car^[20] whilst Thompson entered the house. Vincent did not see with whom Thompson met. He recalled that subsequently Thompson showed him contents of a bag he had in his possession that contained what appeared to be ice.
10. [10]
    As indicated previously the applicant objects to the evidence of Vincent contained in the paragraphs specified in the application on the grounds that insofar as they are evidence of statements made by Thompson to Vincent out of the presence of the applicant these statements are inadmissible hearsay which does not fall within any exception to the hearsay rule.
11. [11]
    In the outline in response filed on behalf of the Director of Public Prosecutions it was initially submitted that the evidence was admissible on the basis that the hearsay evidence of acts or words of one of the parties was in furtherance of a common purpose, and hence admissible against the others a party to the common purpose within Tripodi v R.^[21] To this the applicant submitted that the evidence remained inadmissible because there was no evidence of any preconcert which is a requirement for admissibility under what is sometimes called the Tripodi principle. There is substance in this submission. In order to meet this submission at the hearing counsel for the respondent advanced an argument that the conversations or words said to have been spoken by Thompson to Vincent although spoken in the absence of the applicant were admissible as res gestae or relevant facts.^[22] Thus it was submitted that in a circumstantial case where the evidence does not directly establish the existence or non-existence of a fact required to be proven circumstantial evidence, even of acts or statements by others outside the presence of another, is admissible on the basis that relevant circumstances can be used to draw an inference. It was in this context that counsel for the respondent referred to a number of authorities including those mentioned below.
12. [12]
    The Victorian Court of Appeal in Tsang v Director of Public Prosecutions (Cth)^[23] confirmed that evidence of third parties can be admissible against a defendant on a circumstantial basis:

3. “[35]
   There are three bases under which evidence of statements made by a third person co-accused in the absence of the accused may be admissible. First, the statements may be circumstantial evidence which, along with other evidence, is relevant to the Crown or defence case.

3. [36]
   The admissibility of such evidence does not depend on the existence of a common purpose between the accused and a party to the conversation, provided that it is relevant as part of the surrounding circumstances which tend to prove the accused person’s guilt of the offence. Nor is it necessary for the statements to be made in furtherance of an agreement between the accused and others to commit an offence. Such statements are not admitted as an exception to the hearsay rule (that is, as evidence of the truth of an assertion made), but rather as circumstantial evidence from which an element or elements of the offence can be inferred.”

13. [13]
    In the decision of R v Mbonu^[24] the Victorian Court of Appeal considered an appeal against conviction on the ground that the trial judge erred in allowing certain evidence to be admissible: 

3. “[26]
   However, it is common enough for the physical and verbal interactions between third parties to be admitted as constituting facts relevant to the determination of facts in issue in the case of a particular accused.  They may, in conjunction with other evidence, provide a strong foundation for the inference of concerted activity to be drawn and may, in some situations and, without more, identify the participants, including the accused concerned.  As Young, C.J. stated in R. v. Minuzzo and Williams:

3. "If one finds two persons doing a number of acts independently and it is regarded as too coincidental that the two persons should have acted in such a way unless there were an agreement between them to do so, it would be an affront to common sense to say that the agreement could not be inferred even though there was no evidence that either was present when the acts of the other were done. … ”

14. [14]
    The Queensland Court of Appeal also confirmed this approach in R v Perry:^[25]

3. “[30]
   The rule against hearsay does not prevent evidence being given as to words spoken by another when the speaking of those words is relevant to the facts in issue. The question of hearsay only arises where the words spoken are relied on “testimonially”, that is, to establish the truth of some fact narrated by the words. Even if there be an element of hearsay, that does not necessarily preclude evidence of that kind being treated as conduct from which an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted.

3. …

3. [32]
   If the words spoken purely amount to an assertion put forward for the sole reason of proving the truth of what was said, the evidence is inadmissible. However, if those words are put forward otherwise to found a relevant inference, they are admissible.^”

15. [15]
    To rebut the respondent’s contention that the statements made by Thompson to Vincent were admissible as part of a circumstantial case of actions or words out of the presence of the applicant and thereby admissible, Senior Counsel for the applicant submitted that the evidence was essentially testimonial in character designed to prove the identity of Jack as a significant supplier of methylamphetamine to Thompson as part of his trafficking enterprise. There is I consider substance in the applicant’s complaint concerning the statements or conversations.
16. [16]
    In this matter it should be borne in mind that the statements by Thompson are hearsay statements probative of the applicant’s involvements in Thompson’s enterprise as a trafficker of methylamphetamine, that is as a repetitive supplier to him of the drug. The evidence does not have the character of evidence of the applicant’s state of mind, contrary to the circumstances considered by the High Court in Walton v R^[26], rather it is a hearsay testimonial by Thompson of his dealings with another unidentified person of which there is no other direct evidence. To the extent that Vincent’s evidence contains an account of Thompson’s actions at meetings with another, unidentified, person it cannot be probative of conduct by the applicant. Rather it is another example of inadmissible hearsay.^[27]
17. [17]
    The visit to Sydney in or about February 2011^[28] mentioned in paragraph 24 of Vincent’s statement is in a different category however. It was on that occasion that he saw a man that he could recognise (because of events that occurred subsequently) meet and open the door to Thompson on the occasion of what appears to have been a drug sale transaction. Vincent can identify the applicant because later Thompson introduced that man to him as Jack at an event in a hotel room at the Casino. That is direct evidence which, if accepted, would identify the applicant as a person who on the occasion that Vincent spoke of supplied methylamphetamine to Thompson. The same applies to the event Vincent speaks of when he travelled to Sydney and met the applicant in paragraph 32 of his statement. But the other evidence complained of does not have the character of circumstantial evidence of acts or statements out of the presence of an accused designed to prove a case circumstantially. Rather the evidence should be understood as an attempt to prove directly through hearsay statements made by Thompson that the applicant regularly supplied methylamphetamine to Thompson which Thompson on-sold as part of his trafficking business. In other words it is not circumstantial evidence but an attempt to introduce direct testimonial evidence of the applicant’s involvement in the regular supply of trafficking of methylamphetamine. With the exception of the meetings or observations spoken of by Vincent in paragraphs 25, 28 and 32 the evidence complained of in the paragraphs of Vincent’s statements specified in the application are inadmissible hearsay. By contrast paragraph 32 is not inadmissible hearsay. It is direct evidence from Vincent of his having a meeting with the applicant when he gave the applicant money and the applicant told him that he could not give Thompson any more drugs because he had to repay him more money. This together with the direct evidence of Vincent concerning the meeting he saw the applicant have with Thompson in February 2011^[29] and his evidence that he saw Thompson being admitted to the house by the applicant carrying a bag with money and returning with what appeared to be methylamphetamine or ice together with the evidence of being introduced to “Jack” later at the hotel room at the Casino^[30] is direct evidence of Vincent’s observations of the defendant’s activities or discussions concerning drug transactions. Otherwise the evidence in the statements of Vincent in the paragraphs specified in the application which concerns statements made by Thompson to Vincent are not admissible and I rule accordingly.