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Court of Criminal Appeal 22 March 2000

R v Watt

[2000] NSWCCA 37

Drugs
CRIMINAL LAW EVIDENCE ADMISSIBILITY OF STATEMENTS BY CO OFFENDER TO UNDERCOVER POLICE OFFICER WHETHER VERDICT UNREASONABLE

Citation: Watt v R [2000] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 22 March 2000 (judgment delivered 26 May 2000)
Judge(s): Grove J, Hidden J, Greg James J

Background

The appellant was convicted by a District Court judge, sitting without a jury, of knowingly taking part in the supply of a commercial quantity of methyl-amphetamine. The Crown's case was that a co-offender named Bowman conducted four drug sales at a hotel car park to an undercover police officer, acting on behalf of the appellant, who supplied the drugs and received the proceeds.

To link the appellant to Bowman's activities, the Crown relied on surveillance evidence and recorded conversations between Bowman and the undercover officer. Several of those conversations referred to a person called "Ray," said to be the appellant. The trial judge ultimately confined his identification findings to a single tape-recorded conversation from 5 March 1996, preferring the objective recorded material over unrecorded conversations.

The appellant was sentenced to four years' imprisonment, comprising a minimum term of two and a half years and an additional term of one and a half years. He appealed against both conviction and sentence.

  • Whether statements made by Bowman to the undercover officer were admissible against the appellant under section 87(1)(c) of the Evidence Act 1995, as representations made in furtherance of a common purpose
  • Specifically, whether the statements in the 5 March 1996 conversation were made "in furtherance of" the common purpose charged
  • Whether the scales and associated drug paraphernalia found at the appellant's premises were admissible
  • Whether the verdict was unreasonable or unsupported by the evidence
  • Whether the sentence was appropriate, including whether the involvement of undercover police diminished the appellant's culpability

Decision

Admissibility of Bowman's statements (the principal ground)

The court was divided on whether the 5 March conversation was properly admitted. Hidden J, with whom Greg James J disagreed on this point, found that the particular statements in that conversation could not be characterised as being made in furtherance of the common purpose charged. The undercover officer had introduced the topic of "Ray," and Bowman's only references to the appellant concerned the possibility of supplying drugs on the following Thursday, a date outside the charged period.

Greg James J (with whom Grove J agreed on this point) took a different approach. In his view, section 87(1)(c) requires only that the statement be made in furtherance of a common purpose, not necessarily the charged common purpose in its precise terms. The charged common purpose encompassed supply on the charged dates and on others, so the statement fell within its scope and was properly admitted.

Effect of any error

The court unanimously agreed that, even accepting Hidden J's view that the 5 March conversation was wrongly admitted, no substantial miscarriage of justice resulted. There was other admissible evidence supporting the conviction, including surveillance, the discovery of scales, glucodin and re-sealable bags at the appellant's premises, and the appellant's own interview acknowledging his friendship with Bowman. The appeal against conviction was dismissed.

Sentence

The court rejected the argument that the use of undercover police reduced the appellant's culpability. The appellant was at arm's length from the police throughout. There was no basis to find that the offence would not have been committed but for police overtures. The court granted leave to appeal against sentence but dismissed that appeal.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed, following R v Macraild, that section 87(1)(c) of the Evidence Act 1995 reproduces the common law on admissibility of co-offender declarations, requiring reasonable evidence of pre-concert between the accused and the maker of the statement.
  • A division emerged among the judges on whether a co-offender's statement must be made in furtherance of the charged common purpose or simply a common purpose shared with the accused. Greg James J (Grove J agreeing) took the broader view, requiring only the latter.
  • Under the Evidence Act 1995, section 87(1)(c), the court need only be satisfied it is "reasonably open to find" that the representation was made in furtherance of a common purpose; that threshold was met on the facts here regardless of which approach was applied.
  • Even where a ground of appeal against admissibility succeeds, a conviction will not be set aside unless a substantial miscarriage of justice has actually occurred, assessed against the totality of the admissible evidence.
  • The use of undercover police operations does not, of itself, diminish an offender's culpability for sentencing purposes; that reduction is reserved for cases where police involvement was such that the crime would not have been committed without it.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), section 87(1)(c)

Cases:
- R v Macraild (CCA, unreported, 3 November 1997)
- Tripodi v The Queen (1961) 104 CLR 1
- Ahern v The Queen (1988) 165 CLR 87
- R v N (1999) 106 ACrim R 493
- Taouk (referenced in R v N)
- Sultana (1992) 74 ACrim R 27