The Queen v Gregory Martin Hinton [2000] ACTSC 31 (21 March 2000)

Last Updated: 16 October 2000

The Queen v Gregory Martin Hinton [2000] ACTSC 31 (21 March 2000)

No. SCC 93 of 1998

Judge: Spender J

Supreme Court of the ACT

Date: 21 March 2000

IN THE SUPREME COURT OF THE )

) No. SCC 93 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

AND: GREGORY MARTIN HINTON

RULING ON APPLICATION FOR SEPARATE TRIALS

Judge: Spender J

Date: 21 March 2000

Place: Canberra

1. On 21 March 2000, the Crown presented an indictment against Gregory Martin Hinton containing 12 counts. Counts 3 to 10 alleged that at nominated times ranging from 1 December 1996 until 31 December 1997, the accused (Hinton) supplied methamphetamine or MDMA to five named persons. The first count alleged a sale of metamphetamine to one Darrell Patrick Hicks between 1 September 1997 and 1 December 1997, and the second count alleged possessing a traffickable quantity of methamphetamine for the purpose of sale or supply to any person, this count being based on evidence from Mr Hicks as to receipt on one day of what was said to be more than the traffickable quantity of methamphetamine. The eleventh and twelfth counts alleged respectively possession by the accused on 6 February 1998 of methamphetamine for the purpose of sale and supply to any person, and the possession of MDMA on that day for the purpose of sale or supply to any person.

2. After the accused was arraigned and before he had pleaded to any of the counts in the indictment, his counsel, Mr C M Everson, sought orders pursuant to s 365(2) of the Crimes Act 1900 in its application in the Territory, for separate trials of various counts in the indictment, submitting that there should be separate trials on the first two counts, a separate trial on the third and fourth counts, a separate trial on the fifth count, a separate trial on the sixth count; a separate trial on the seventh and eight counts, on the ninth and tenth counts and on the eleventh and twelfth counts.

3. Subsection 365(2) provides:

"Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his or her defence by reason of 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 1 or more offences charged in an indictment, the court may order a separate trial of a count or counts of such indictment."

4. It was submitted on behalf of the accused that he is prejudiced or embarrassed in his defence by reason of being charged with such a large number of offences on the one indictment; secondly, the defences to the various charges were different; and thirdly, the evidence as to each charge was not admissible in relation to every other charge.

5. There was also objection taken to the count preceding on the sixth count, which was an ex officio count alleging the supply of metamphetamine to Imogen Lucy Taylor between 1 March 1997 and 30 April 1997. An application was made to stay that count to enable committal proceedings to be taken to ensure that the accused received a fair hearing relying on R v Barton [1980] HCA 48; (1980) 147 CLR 75.

6. After extensive argument, I declined the application to sever the counts in the indictment and declined also to stay count six, indicating that any prejudice flowing from being deprived of the opportunity to cross-examine or otherwise test the evidence of Ms Taylor at a committal would be met by permitting counsel for the accused in the absence of the jury to cross-examine Ms Taylor the "Basha Inquiry" of the type identified by Hunt J in R v Sandford (1994) 33 NSWLR 172, and then permitting sufficient time subsequent to such cross-examination before Ms Taylor gave evidence in front of a jury. I indicated that I would supply my reasons for not ordering separate trials later. These are those reasons.

7. The Crown case asserts that between late 1996 and early 1998 the accused was involved in the acquisition and distribution of MDMA and metamphetamine in the Australian Capital Territory. The first ten counts are based on specific instances of dealing in a Territory during that period. The Crown alleges that in respect of each particular person supplied (numbering six) the supply of drug or drugs in question was not a "one-off" transaction and the Crown proposes to lead evidence of the general relationship between the accused and the person supplied, including evidence of other occasions the accused supplied that person with drugs in order, so it was said, that the jury gain a proper understanding of the relationship between the complainant and the accused and the circumstances in which the specific allegation comes to be made. Such evidence was said to be admissible as relevant circumstantial evidence.

8. In Wilson v R [1970] HCA 17; (1970) 123 CLR 334, Barwick CJ said at 338:

"... `the conduct of the accused' of which the relationship of the parties may be explanatory will not necessarily be limited to the act charged, as in this case, the act of shooting, but will extend, in my opinion, to any act of the accused the proof of which is itself relevant to the question whether the accused in fact did the act charged."

9. Menzies J stated:

"It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence-which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue-to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide."

10. McHugh J in Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 said at 630:

"Evidence relating to the accused and the alleged [complainant] (`the relationship cases') although revealing other criminal conduct, will frequently be admissible because it tends to prove how or why the conduct the subject of the charge arose or because it makes it more probable than not that the conduct occurred at the time or place or in the way alleged. In the `relationship cases' evidence of previous acts is admissible not to show general criminal disposition but to show the nature of the relationship between the parties."

11. The Crown says that it will call evidence that the accused would travel to Sydney in order to purchase metamphetamine and MDMA and return to the Territory and would distribute either directly to users (of whom Ms Taylor and Kylie Brill are instances) or to persons who were both users and ondealers (including Kylie Walker and Renee Wildey) who would onsell the drugs.

12. The distribution of the drugs occurred at a nightclub, with which he was associated, from his own home or through various user-dealers. The Crown proposes to call evidence pointing to the carrying on of the business of drug dealing over that period, including evidence of large quantities of money in the possession of the accused, in the absence of any legitimate source of income as well as documents in the form of drug accounts containing details of amounts of money owed by persons to whom the accused sold drugs. Transcripts of intercepted telephone calls containing discussions and which were said to be about drug dealing, often using a code, would be called, with witnesses to give evidence as to the meaning of the conversations and the code employed.

13. It will be necessary to identify the particular supply of drug which is alleged in each count, in my opinion. The Crown says that on some counts there will be corroborative evidence from persons other than the person supplied including witnesses to a particular supply, and telephone calls between the person supplied and Mr Hinton during which drug dealing is discussed.

14. The principal submission seeking severance is the contention that if evidence in relation to one count is not admissible on the other counts, then there should be no joinder of the counts. Gibbs CJ in De Jesus v R [1986] HCA 65; (1986) 68 ALR 1, referred to an enquiry by the trial judge in that case:

"whether there was any authority in conflict with R v Ludlow [1971] ACT 29, in which Lord Pearson, at 39, gave implicit approval to the following statement in R v Kray [1970] 1 QB 125 at 130-1: `...offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the others, but it is clear that the rule is not restricted to such cases'."

15. Counsel for the accused submits the evidence on each count is not cross-admissible. The Crown submits that it is.

16. In Queensland there is statutory provision in the Criminal Code concerning the joinder of counts, in s 567:

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

(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.

(3) Where more than 1 offence is charged in the same indictment, each offence charged shall be set out in the indictment in a separate paragraph called a `count' and the several statements of the offences may be made in the same form as in other cases without any allegation of connection consecutively.

...".

There is no such statutory provision in the Territory.

17. Section 365(2) impliedly recognises that counts may be joined in an indictment and provides a discretionary basis for severance. The only other provision in the Crimes Act in this application in the Territory touching the question of joinder is s 370 which provides:

"In every case counts may be inserted in the same indictment, against the same person, for any number of distinct offences of the same kind, not exceeding 3, committed against the same person if no more than 6 months have elapsed between the first and last of those offences."

This section is not referred to by counsel for the accused or counsel for the Crown and, in my view, it has no application in the present circumstances, since none of the counts is "a count against a person".

18. In my opinion, unless the test or cross-admissibility is satisfied, the counts should be severed. If the evidence is cross-admissible, then the court must nonetheless then consider whether it is desirable to direct separate trials.

19. In Sutton [1984] HCA 5; (1984) 152 CLR 528, the accused was arraigned on an indictment containing one count of attempted rape and seven counts of rape committed in respect of three females between August 1981 and October 1991. The High Court held that the eight counts were properly joined on similar fact principles and that the evidence on each charge was admissible in considering the other charges. Gibbs CJ said at 531:

"...where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Director of Public Prosecutions v Boardman [1975] A.C. 421, at pp.442, 447, 459 and it is a view consonant with justice, for, as Lord Cross of Chelsea said in Director of Public Prosecutions v Boardman [1975] A.C., at p.459, to let in inadmissible evidence by trying the charges together would be to pay no more than lip service to the rule which excludes evidence of similar facts.".

20. Brennan J, as he then was, said at 541-542:

"When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse affect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted."

21. This statement was cited with approval by Gibbs CJ in De Jesus at 4, where he said:

"This is a general statement, not limited to sexual cases, and so viewed I respectfully agree with it."

22. In Hoch [1988] HCA 50; (1988) 165 CLR 292, the High Court reaffirmed the proposition that where offences are joined in an indictment, and evidence admissible on one count is not admissible on other counts, separate trials should be ordered.

23. The first question, therefore, is whether the evidence is cross-admissible.

24. The test for admissibility in the Australian Capital Territory is to be determined by the application of the Evidence Act 1995. It is not a proper approach to consider what the position concerning admissibility would be at common law, and then see if that same conclusion can be fitted in with the provisions of the Evidence Act.

25. The starting point is s 55 of the Evidence Act which provides that: evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. Section 56 provides:

"(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible."

26. "Tendency evidence" as defined in s 97 of the Evidence Act is evidence of conduct etc adduced to prove a "tendency" to act in a particular way, evidence that the accused committed offences similar to that with which he is charged thereby disclosing a propensity to commit the crime charged, adduced for the purpose of drawing an inference of conforming conduct.

27. In this case there are two categories of unlawful conduct in which the Crown seeks to rely. The first is other acts of supply in relation to the same person supplied, which is said to be admissible on the "relationship" basis. The second category of unlawful conduct involving other persons, which is said to be admissible not only as tendency evidence, but also being directly probative of the issues in a particular count of supply.

28. Section 101(2) of the Evidence Act 1995 provides relevantly:

"Tendency evidence about a defendant...that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."

29. This subsection clearly accepts that tendency evidence is admissible, subject to the balancing test for which the subsection calls. In my opinion, there is an implied recognition that tendency evidence is probative of the fact in issue. It is also clear, as the majority of the High Court in Pfennig v R [1995] HCA 7; (1995) 127 ALR 99 recognised at 118, that:

"Propensity evidence (including evidence of bad disposition and prior criminality) has always been treated as evidence which has or is likely to have a prejudicial effect....Hence the necessity to find something in the evidence or in its connection with the events giving rise to the offences charged which endows it with a high level or degree of cogency."

30. I have been informed that a notice pursuant to s 100 of the Evidence Act in relation to an intention to lead tendency evidence has been served on the accused's legal representatives.

31. In my opinion, the evidence in each count is tendency evidence on each other count, which satisfies the criteria for admissibility laid down in s 97(1) of the Evidence Act. In my opinion, it does not fall foul of the criteria for rejection contained in s 101(2) of the Act, as the probative value substantially outweighs the prejudicial effect. In my opinion, the tendency evidence in this case is of a type similar to that in Harriman. The degree of cogency of tendency evidence varies depending on the nature of the case. In my opinion, there is a high degree of cogency of the tendency evidence in this case both in relation to the "relationship" basis of other offences involving the same person supplied, and to the evidence of other counts in relation to any particular count, because such evidence is strongly confirmatory or explanatory of the evidence implicating the accused.

32. The evidence of other criminal activity, on which the Crown also seeks to rely, goes beyond showing a mere propensity to dealing in drugs per se. It has the capacity to corroborate the direct and other evidence suggesting the accused supplied drugs as the Crown alleges in each count. In my view, evidence that the accused was at a relevant time found in possession of the type of drugs he was alleged to have earlier supplied, was having conversations relating to supplying others with those same drugs and was himself supplying other persons with those drugs is highly probative evidence, capable of being corroborative of a particular allegation of supplying one of those drugs to a particular person at or about that time.

33. If the accused had made a statement: "I was extensively involved in the illegal business of selling speed and ecstasy in the ACT throughout the period from late 1996 to February 1998", that statement in my opinion would be admissible and highly probative on a charge that on a particular date he sold or supplied methamphetamine or MDMA to a named person. So, too, in my opinion, is evidence pointing to and consistent with the accused being extensively engaged in the business of drug dealing in the Territory throughout that period.

34. Further, in my opinion, evidence of each of the other sales comprehended by counts one to ten is relevant and admissible. On counts eleven and twelve, which allege possession with the purpose of sale or supply, in Geurin v The Queen (an unreported judgment of the Full Court of the Federal Court of 29 December 1992) Von Doussa held that evidence of prior sales of amphetamine to a particular person was admissible on account of later being in possession of amphetamine for the purpose of sale and supply. Beaumont J said:

"In my opinion the evidence of (the person supplied) that the appellant had sold drugs to him from time to time was arguably probative of the facts in issue on each of the other counts.

35. For the above reasons, I decline to order separate trials pursuant to the discretion in Section 365(2) of the Crimes Act.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons herein of his Honour Justice Spender concerning the declining to order separate trials.

Associate:

Date: 31 March 2000

Counsel for the Crown: Mr S Whybrow

Solicitor for the Crown: Director of Public Prosecutions

Counsel for the Accused: Mr C Everson

Solicitor for the Accused: Saunders & Company

Date of hearing: 21 - 31 March 2000

Date of judgment: 21 March 2000