New South Wales District Court CITATION: R v Saurav MAHAY; Michael Dean KHAN, Dushand RANA [2010] NSWDC 343 JUDGMENT DATE: 27 August 2010 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Evidence of the first call not to be admitted. The balance of the calls are admissible. CATCHWORDS: CRIME - jury trial - specially aggravated detain for ransom - intercepted telephone calls - one co-accused not a party to any of the intercepted calls - application by Crown to tender calls against accused who is not a party to the calls as admissions - whether what was said in the calls was said in furtherance of a common purpose - meaning of 'in furtherance of' - meaning of 'reasonably open' LEGISLATION CITED: Evidence Act 1995 s 87, s 135 Ahern v The Queen (1988) 165 CLR 87 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90 CASES CITED: Jackson v TCN Channel Nine Pty Ltd [2002] NSWSC 1229 Landini v New South Wales [2007] NSWSC 259 Tripodi v The Queen (1961) 104 CLR 1 Regina PARTIES: Saurav Mahay Michael Dean Khan Dushand Rana FILE NUMBER(S): 2008/82064; 2008/211508; 2008/254927 Mr S De Silva for the Director of Public Prosecutions COUNSEL: Ms K Stares for Mr Khan Ms ST Hall for Mr Rana SOLICITORS: Mr WJ Sandilands for Mr Mahay JUDGMENT 1. Michael Dean Khan has been charged with kidnapping. He is jointly charged with two other accused, Saurav Mahay and Dushand Rana. 2. Part of the prosecution case was evidence of intercepted telephone calls. The parties to the telephone calls included, at various stages, Mr Khan's co-accused Mr Mahay and Mr Rana and other persons. Mr Khan himself is not a party to any of those telephone calls. 3. The Crown Prosecutor, Mr De Silva, nevertheless tenders the telephone calls against Mr Khan. They are tendered, he says, as admissions made on behalf of Mr Khan. He tenders them under s 87 of the Evidence Act 1995, in particular s 87(1)(c). 4. The test to be applied by me according to that section - if what is said in the telephone calls is to be admitted against Mr Khan as admissions - is whether it is reasonably open to find that what was said in the telephone conversations was said "in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more person including the party." Put in terms of this case the question is whether anything said by people speaking on the phone could be said to have been said in furtherance of a common purpose between that person and Mr Khan or others. 5. If I am satisfied that it is reasonably open to find that, the section provides that "the court is to admit the representation". As McDougall J said in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90 at [28], although s 87 "says that the court 'is to admit the representation' if it makes the necessary finding, I do not see that as overriding, or excluding the application of, s 135." I respectfully agree with his Honour. 6. The section was considered by Hall J in Landini v New South Wales [2007] NSWSC 259. At [19] his Honour observed that the expression "common purpose" is "a familiar one, particularly in the field of criminal conspiracy." His Honour went on to observe that the expression "generally speaking, involves the concept of a combination or some form of preconcert formed between two or more persons to do an act or acts of a particular kind." 7. It is to be noted and Ms Stares, who appears for Mr Khan in these proceedings, drew attention to, s 87 providing that the representation has to be made "in furtherance of" a common purpose. 8. Hall J considered that phrase as well in the same paragraph of the same case and said that the phrase "in furtherance of" "carries with it the ordinary English dictionary meaning encapsulated in the word 'furtherance', namely the fact of being helped forward; the action of helping forward; advancement, aid, assistance." His Honour made reference to the Shorter Oxford English Dictionary and went on to observe that the expression in the context of the section "denotes an act done to advance, aid or help a common purpose, whether that purpose is a lawful one or not." 9.In Tripodi v The Queen (1961) 104 CLR 1 in a joint judgment, Dixon CJ and Fullagar and Windeyer JJ said the following at 7, a passage referred to by Hall J: " 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 of 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 but 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 ." Although, of course, their Honours were not dealing with the statutory provision which is relevant here it is a useful perspective on the interpretation of the provision from a case which is very often referred to in the context of joint criminal enterprise or conspiracy. 10. Ms Stares acknowledged that I must take the Crown case at its highest and, so far as the expression "reasonably open" as used in the section is concerned, Adams J in Jackson v TCN Channel Nine Pty Ltd [2002] NSWSC 1229 at [40] observed that the phrase "reasonably open" "has been deliberately chosen to distinguish the standard of proof from that which applies to the ultimate issue and it is an adaptation of the phrase 'reasonable evidence' adopted in Ahern v The Queen (1988) 165 CLR 87 as required where it is sought to tender evidence of prior representations made by an alleged co-conspirator against an accused charged with conspiracy and is virtually equivalent to 'a prima facie case'." 11. Ms Stares argues that it is not reasonably open to find that there was a common purpose between her client and the persons who made the various representations on the telephone but, specifically and relevantly, his co-accused Messrs Mahay and Rana. 12. Mr De Silva, on the other hand, says that evidence is available for me to conclude that there was a common purpose existing. 13. I should add that Ms Stares as an alternative argument submits that anything said on the calls or some of the calls was not said in furtherance of any common purpose which I may find existed between her client and his co-accused. 14. Mr De Silva referred to evidence from the alleged victim of the kidnapping, that he was not allowed to leave the home of Mr Khan where the prosecution claims the kidnapping commenced. He was required to move into the back yard of that home where he was beaten and kept in a shed. At least the beatings occurred, on his evidence, in the presence of Mr Khan. Mr Khan during the course of an evening which lasted some hours until the early hours of the following morning visited a local service station a couple of times in order to obtain supplies such as cigarettes for those who were at his house. On an occasion when he returned the others -namely his co-accused and the alleged victim - were, according to the victim's evidence, crammed into a shed. The evidence suggests that the men were in the shed for between thirty and sixty minutes. The prosecution case is further that the victim was required to stay overnight at Mr Khan's home where he was required to sleep in a bed between the co-accused. 15. The following day he was taken in a car driven by Mr Khan to a shopping centre near a police station. Contact had been made by the police by Mr Khan who said that he would arrange to deliver the victim. The evidence is that Mr Khan had agreed with the police to deliver the victim by 12.30pm on that day. He had not been delivered by that time and the police arrested the accused and, on the prosecution case, liberated the victim from a location near the police station in a shopping centre car park. 16. A second body of evidence which Mr De Silva relies upon is a piece of cardboard found in Mr Khan's pocket which became exhibit VDJ in the voir dire on the admissibility of this evidence. It was admitted to be in his handwriting and had on it, amongst other information, the figure $7,100 and some other figures which obviously referred to sums of money. The evidence is from the victim that the initial ransom amount sought after he was kidnapped was some $7,000. 17. To my mind that evidence demonstrates a common purpose - or it is open to conclude on a prima facie basis that that evidence demonstrates a common purpose - existed between Mr Khan and his co-accused so far as the alleged kidnapping was concerned. 18. Ms Stares, as I said, argued in the alternative that at least some of the calls did not constitute evidence of representations made in furtherance of such a common purpose. In addition she relied upon the discretion I have under s 135 of the Evidence Act. 19. So far as the first telephone call is concerned, which occurred on 5 September 2008 at 11.44.37 and I am told was between the co-accused Mr Rana and an unidentified person at his residence, I am of the view that Ms Stares has made out her alternative argument. It seems to me that the contents of that telephone call amount to no more than a narrative account by the speaker, said to be Mr Rana, of what had occurred the previous evening. It does not appear to contain anything which could be said to be in furtherance of the common purpose or anything which might be said to amount to directions, instructions or arrangements. I, for that reason, directed that evidence of the first call be not admitted against Mr Khan. 20. So far as the balance of the calls which were made between 11.48.58 and 13.12.04 on the same day, all of them in my opinion contain components which indicate that they constituted an advancement in the common purpose between Mr Khan and his co-accused. There were, for example, representations about arrangements with the police and the need to communicate with a person named Gurvinder Singh as well as information about the progress of what the prosecution says was the kidnapping and ransom exercise. 21. I cannot find anything in those calls which would warrant me exercising the discretion I have under s 135 of the Evidence Act as being unfairly prejudicial or misleading or confusing or cause or result in undue waste of time. 22. For those reasons, I directed that the balance of the telephone calls were admissible against Mr Khan. 23. There were submissions also made by Ms Stares about the relevance of some of the calls but to my mind they are clearly relevant because each of them, it is open to conclude, are about the common purpose between the caller and Mr Khan and in furtherance of that common purpose. 24. It is for those reasons that I gave the directions that I did so far as Ms Stares' objections were concerned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.