Harris (a Pseudonym) v The Queen [2017] VSCA 316

Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

1 An indictment filed in the County Court charges that, contrary to s 307.1(1) of the Criminal Code (Cth), the applicant 'at Melbourne in Victoria on the 18th day of October 2015 did import a substance, the substance being a border controlled drug, namely heroin and methamphetamine contained within three suitcases, and the quantity imported being a commercial quantity'.

2 Prior to empanelment of a jury, counsel for the applicant sought the exclusion of prosecution evidence concerning, first, evidence relating to Australian visa applications - linked to a Malaysian travel agent - tending to show a connection between the applicant's co-offenders and an individual, 'Karthigesan Kuppan' ('Kuppan'); secondly, evidence of a 'pattern of phone calls' involving the applicant, Kuppan and an unknown user of an Indian telephone number; and, thirdly, evidence of intercepted telephone calls on 19, 21 and 23 November 2015, evidencing conversations between the applicant and another or others, relating (amongst other things) to 'stock' and 'mistakes' that have been made.

3 On 11 October 2017, the trial judge ruled the impugned evidence to be admissible, and refused to exclude it ('the ruling' or 'the interlocutory decision').

4 Pursuant to s 295 of the Criminal Procedure Act 2009 - the trial judge having certified under s 295(3)(a) that 'the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case' - the applicant sought leave to appeal against the interlocutory decision

to admit into evidence the following three sets of evidentiary material chiefly relating to a certain [Karthigesan] Kuppan, namely:

• evidence of an alleged 'connection/link between the Accused' (SPO[[2]] 51-54) that the visa applications dated of the three co-accused ['JS', 'SS' and 'KR'] provided contact details (2 phone numbers apparently linked to a certain Kuala Lumpur travel agent) in the same terms as did the visa application of Kuppan on an earlier date;

• evidence of a 'pattern of phone calls' (SPO 62A-64) showing CCR-based[[3]] telephone contact between phones associated with [Harris] '958', Kuppan '941' and an unknown user of an Indian number '015'; and

• evidence of certain Telephone Intercepts dated 19, 21 and 23 November 2015.

1. The learned trial judge erred in holding, in respect of each set of evidentiary material, that the material was relevant for the purpose of ss 55 and 56 of the Evidence Act 2008.
2. The learned trial judge erred in holding, in respect of each set of evidentiary material, that the material did not fall to be excluded pursuant to section 137 of the Evidence Act 2008.

6 Having heard oral argument in support of the application, on 16 October 2017 the Court made an order refusing leave to appeal, and indicated that it would later provide reasons for that order. These are those reasons.

7 So as to understand the issues raised in the application, it is necessary to summarise the way in which the prosecution seeks to put its case at trial.

Three couriers import three suitcases containing drugs

8 This case concerns three black suitcases, containing a very large quantity of heroin and methamphetamine, imported into Australia from Malaysia aboard a commercial passenger flight on 18 October 2015.

9 Three passengers - ultimately the applicant's co-accused, 'KR', 'SS' and 'JS' - had, on 18 October 2015, travelled from Kuala Lumpur, Malaysia, to Melbourne on Malaysian Airlines flight numbered MH 129. Ticketing information and closed-circuit television ('CCTV') footage from Kuala Lumpur International Airport indicates that these three individuals had, on 18 October 2015, each checked-in one of the three suitcases containing the drugs onto flight MH 129, which departed Kuala Lumpur International Airport at 10.30 am that morning, and arrived at Melbourne International Airport at 9.20 pm that evening. They had checked-in as travelling together, and each had written on their Incoming Passenger Card ('IPC') that they were going to stay in Melbourne for three days and intended to reside at the 'Ibis Styles Kingsgate Hotel'. Each had all also listed 'Sathis Kumar' as an 'Emergency contact' person.

10 CCTV footage revealed that when they arrived at Melbourne International Airport, KR, SS and JS proceeded through the airport together, making no attempt to collect the three suitcases - containing the heroin and methamphetamine - that they had checked-in at Kuala Lumpur International Airport.

The applicant collects the three suitcases from the baggage carousel

11 Importantly, the applicant arrived at Melbourne International Airport on the same flight as the couriers, and collected the three suitcases containing the drugs from the baggage carousel. He was then directed for a luggage examination by Australian Border Force ('ABF') officers.

12 It seems that not every passenger who collects baggage from the baggage carousel at Melbourne Airport is subject to a baggage examination. Indeed, it appears from the evidence that most passengers coming off an international flight do not have their bags examined. At Melbourne Airport, there are ABF officers who act as 'Marshals'. Their job is to direct passengers either to the exit, or to quarantine, or for further baggage examination. That fact is important, since the prosecution asserts that the plan was for a passenger other than KR, SS or JS to collect the suitcases containing the drugs, and, if there were no examinations, to take them from the airport. If, however, it appeared that the drugs might be discovered, the passenger could claim, before the bags were examined, that they had mistakenly collected the wrong bags.

13 As we have said, the applicant arrived on the same flight from Malaysia as KR, SS and JS. From the baggage carousel he collected the three suitcases that had been checked-in at Kuala Lumpur Airport by KR, SS and JS, and had them on a trolley in his possession when he was directed for a baggage examination by ABF officers. The applicant indicated to the ABF officers about to examine the suitcases that they were not his, and that he must have collected them from the baggage carousel by mistake. Officers then accompanied the applicant back to the baggage carousel. He there collected three black suitcases with a similar appearance to the suitcases that contained the drugs. The applicant then accompanied officers back to the baggage examination desk, where ABF officers asked him some questions and inspected his luggage, no illicit substances being detected. He then left the examination benches and moved towards the exits to the public arrivals area of the airport. At 10.18 pm the applicant exited the airport in possession of his three suitcases (the three couriers being captured on CCTV moving through the taxi queue at 10.12 pm). The three suitcases containing the drugs remained at the airport as unclaimed luggage.

14 The prosecution case is that the applicant had intentionally collected the suitcases with the illicit drugs from the baggage carousel in the hope he would not be directed for a baggage examination and would simply be able to depart the airport with them. CCTV footage indicates that the applicant collected the suitcases with the drugs from the carousel at about 9.32 pm. A few minutes after he had loaded the three bags onto the trolley, he was approached by an ABF officer who informed him that she was going to conduct a baggage examination. By this time, the passengers who had actually checked-in the bags in Malaysia - KR, SS and JS - had already been questioned by ABF officers and were in the process of leaving the airport.

15 At around midday the next day, 19 October 2015, ABF officers inspected the three black suitcases that had been left behind at the airport. When the suitcases were opened, they were found to contain a large number of packets labelled as Chinese Tea, together with items that appeared to be brown blocks. One of the 'Chinese Tea' packets in one of the cases appeared torn, and white crystalline substance was strewn throughout the bag. Subsequent analysis revealed that the Chinese Tea packets contained white crystals that were approximately 80 per cent pure methamphetamine, and the brown blocks contained white crystals that were approximately 70 per cent pure heroin. The three suitcases contained approximately 19 kilograms of crystals rendering approximately 14.5 kilograms of pure heroin, and 54 kilograms of crystals containing approximately 43 kilograms of methamphetamine. It is estimated that - depending on the manner of sale - the value of the drugs is between 16 and 88 million Australian dollars.

16 At 11.03 pm on 19 October 2015, Australian Federal Police ('AFP') officers went to the Ibis Styles Hotel in order to conduct a controlled delivery to KR, SS and JS. An AFP officer asked the hotel manager to contact the room occupied by the three, so as to advise them that their three suitcases had been delivered and that they should come and collect them. At 11.25 pm, KR and SS approached the front counter of the hotel, and SS said 'that's our bags', gesturing towards the three large black suitcases which had been placed behind the front desk. The AFP officer then handed the suitcases to KR and SS, who took possession of the them and transported them back to their room. KR and SS asked no questions about the luggage, and did not state that the luggage was not theirs. Shortly afterwards, AFP officers arrested KR, SS and JS in their hotel room.

The applicant's alleged attempts to retrieve the suitcases containing drugs

17 As we have mentioned, ABF officers located the drugs in the three black suitcases at about midday on 19 October 2015. Earlier that day, at about 8.40 am, the applicant returned to the airport. At that time, the three suitcases were still designated as unclaimed luggage. CCTV footage captured the applicant alighting from the Skybus at the terminal, wheeling three black suitcases similar in appearance to those that he had taken possession of the previous evening.

18 At 8.42 am, the applicant entered the Menzies Aviation Baggage Services Office ('Menzies'), and spoke to an employee. He told her that he had left something in the customs hall when he arrived the previous night on flight MH 129. The employee asked the applicant if he had a baggage receipt and he replied that he did not. At that point, the applicant walked past the counter and started to look through baggage stored next to the office. The Menzies employee told the applicant that the luggage from his flight was not yet cleared, that clearance being expected to occur between 9.00 am and 3.00 pm that day. The applicant told the employee that the item he was looking for was a picture frame. The Menzies employee then asked the applicant to complete a form titled 'Courtesy Trace Only', enabling Menzies staff to contact him, should they locate the frame.

19 It is alleged by the prosecution that the applicant went to Menzies, hoping that the suitcases with the drugs might have been in the unclaimed baggage area, and so that he might have been able in some way to recover those suitcases. The prosecution case is that the claim to have left a picture frame on flight MH 129 was false and intended to disguise the applicant's interest in the suitcases containing the drugs. Menzies' records indicate that only three items had been unclaimed at Melbourne Airport in October 2015, none of those items being a picture frame. Malaysian Airlines ticketing records also indicate that the applicant checked-in only three items of luggage, each of which was assigned a luggage tag and that the items were three bags weighing 39 kilograms in total.

20 After leaving the Menzies office, the applicant can be seen on CCTV footage walking through the 'meet and greet' area of Melbourne International Airport. He has three black suitcases. At about 9.19 am, the applicant is seen to stand near the 'exit-only' door from Customs, at a point where arriving passengers emerge into the public area of the airport. He is observed to be standing next to this exit for about five minutes, the prosecution case being that the applicant was contemplating an attempt to re-enter the Customs area with the three suitcases (and to go in the opposite direction to arriving passengers).

21 Having stood at the exit for five minutes or so, the applicant is captured on CCTV footage approaching the Skybus ticketing office outside Melbourne International Airport, at a point where passengers catch the Skybus into the city. He stood there for several minutes but did not board a bus.

22 The applicant then left the bus stop and went back into the airport building. CCTV footage depicts the applicant then standing at the same exit where he had been standing before going to the bus stop. He is seen to be wheeling the three black bags. On this occasion, however, rather than remaining outside the exit, the applicant is seen to proceed the wrong way through the exit-only door into the Customs area, where an ABF officer was processing exiting passengers. The ABF officer - to whom the applicant asserted that he had the wrong bags - directed the applicant to leave that area of the airport, as it was a restricted area.

23 Upon leaving the Customs area, the applicant went back to the Skybus stop for a short time, before re-entering the airport building. The applicant remained in the airport building for about eight minutes. He then went back to the Skybus stop and departed the airport.

24 In the evening of 19 October 2015, the applicant returned to the airport. CCTV footage shows, however, that on this occasion he did not bring the three suitcases. The duration of the applicant's visit to the airport on this occasion was less than half an hour. During his visit, the applicant again went to Menzies, where he spoke to another customer service officer. The applicant told the Menzies employee that he had made a report earlier that morning in relation to a missing item and provided his name. The applicant said that the missing item was a picture frame for his parents. He proceeded to looked through the items cleared from the previous evening, but nothing was found. The applicant was advised that in order to trace the missing item, he would need to provide a baggage tag. He indicated in response that he would ring later with a number.

25 At 8.16 pm, the applicant left Melbourne International Airport, for the second time that day.

26 At the risk of some repetition, travel documentation revealed that the applicant had travelled from Chennai, India, to Melbourne, but had stopped-over in Kuala Lumpur, where he caught the same flight as the three who had checked-in the suitcases containing the drugs. His ticket allowed him to check-in two bags with a combined weight of 30 kilograms before excess baggage fees were charged. Airline records indicated that he had checked-in three bags with a total weight of 39 kilograms, he having been charged a fee for the extra nine kilograms. The three suitcases containing the drugs weighed in excess of 85 kilograms; that is, just over twice the weight of the suitcases that the applicant had checked-in (two weighing 28 kilograms, and the third, 29 kilograms). The prosecution asserts that the applicant realised the risks of detection were too great when it was clear that the suitcases he first collected from the carousel were going to be examined. Hence, just before the suitcases were to be taken from the trolley onto the examination bench, he indicated that he had collected the wrong bags by mistake.

The applicant's alleged connection to the couriers

27 CCTV footage did not establish any communication between the applicant and the three who checked-in the suitcases with the drugs. Subsequent examination of the phones that were found in the applicant's possession, however, along with call charge records, indicated that the applicant had a connection with Karthigesan Kuppan. In turn, Kuppan had a connection to the three men who had checked-in the bags, in that his visa application recorded the same two contact telephone numbers as were recorded on the Australian visa applications of KR, SS and JS.

28 Kuppan, a Malaysian national, was granted an Australian entry visa on 11 October 2015, two days prior to the issue date of visas for each of the three couriers. He travelled from Kuala Lumpur to Perth on the same day, arriving on 11 October 2015. The three couriers of the suitcases containing the drugs, KR, SS and JS, made their applications for Australian entry visas on 13 October 2015, the visas being granted that day. Significantly, Kuppan's and the three couriers' visa applications all were made using the same Kuala Lumpur travel agent, 'GS Travel'. In their visa applications, the three couriers had all recorded the same home address in Kuala Lumpur, home telephone number - ending in '23271' - and mobile number - ending in '845' - in circumstances where Kuppan's Australian visa application listed the same home phone number and mobile number as those three (albeit with a different home address). There is evidence that the '23271' number belongs to GS Travel, but there presently is no evidence as to the provenance of the '845' telephone number. According to records held by the Department of Immigration and Border Control with respect to visa applications, however, the '845' Malaysian mobile telephone number common to the four relevant visa applications is only associated with 11 people who have been granted visas. Of those 11, two of the named recipients did not travel to Australia. Kuppan and the three couriers were four of the remaining nine who did.

29 The evidence shows that the couriers travelled five days after their visas were granted, on 18 October 2015, aboard the applicant's return flight from Kuala Lumpur to Melbourne. That return flight had only been booked on 13 October 2015, a few hours after the couriers' flights had been booked, and on the same day that their Australian visas had been granted. The applicant had departed Australia for Chennai via Kuala Lumpur less than 12 hours after having booked his outbound flight.

Call charge records and the 'pattern' of telephone calls

30 Call charge records obtained in relation to the mobile services utilised by the applicant and Kuppan reveal commonality between phone calls and SMS messages with an Indian telephone number - for convenience, 'the 015 number' - in the immediate lead-up to the drug importation and in the period after the importation occurred. Furthermore, the applicant and Kuppan also had phone contact with each other. Thus, the applicant and Kuppan both contacted the 015 number between 18 and 20 October 2015. In the applicant's case, he both contacted and received contact from the 015 number using an Australian mobile - 'the 958 number' - which was activated on 12 September 2015 in the name 'Jesvinder Singh'. There is evidence that the applicant had contact with the 015 number, extending back to late 2014, using a different service. Further, there is evidence that the applicant had contact with the 015 number from 21 to 23 October 2015, using another telephone.

31 In summary, there is evidence that following the arrival of the applicant into Melbourne at 9.20 pm on 18 October 2015, at 11.30 pm Kuppan - using what is described as 'the 941 service' - received contact from the 015 number. At 11.37 pm, the applicant, using the 958 number, then contacted the 015 number. The 015 number then contacted the applicant on the 958 number at 11.56 pm. Shortly after midnight, there were further connected communications between the 015 number with both the applicant's 958 number and Kuppan's 941 number, culminating in connected contacts between the applicant's and Kuppan's numbers. The prosecution case is that these contacts were 'directly responsive to a shared focus', that being the applicant's failure to obtain the three suitcases containing the drugs (contrary to what had been planned).

32 On 19 October 2015, between 12.26 am and 11.56 pm, the evidence reveals 23 connected calls and one message passing between the applicant's 958 number and the Indian 015 number (the longest of which, at 9.49 pm, was almost 15 minutes' duration). Further, there were an additional 38 calls between the two services which were either not connected or diverted to voicemail. Moreover, 28 connected calls and one SMS message were recorded as having been made between Kuppan's 941 number and the Indian 015 number between 12.15 am and 11.31 pm (the longest connected call, at 4.10 pm, lasting a little over four minutes). An additional 38 calls were recorded as having been made between the two services which were either not connected or diverted to voicemail. Additionally, the call history of the applicant's 958 number and Kuppan's 941 number reveals that both numbers were often in connected contact with the 015 number within minutes of each other, and, indeed, in communication with each other.[4]

33 The prosecution also relies on intercepted telephone calls involving the applicant on 19, 21 and 23 November 2015. Thus, on 19 November 2015, the applicant contacted a foreign telephone number, the international dialling code for which corresponded with Malaysia ('the Malaysian number'). There is evidence that connects the Malaysian number to Kuppan, including that he had provided that number as a contact number when booking an internal flight from Melbourne to Perth. In the course of the call, an unknown male says to the applicant (among other things), 'let's start it again' and '... you made a mistake as well ... they made a mistake from this side ... both sides have made mistakes', and asks, '... is the route still there?', prompting the applicant to reply, '... our methods are still in place ... our man is still in the same place ... he is still in the same place'. The unknown male then said, 'we shall meet in our town. No one should know about it'.

34 On 21 November 2015, the applicant received a call from the Malaysian number. Among other conversations, the applicant asked the unknown male from whom the call was received, how 'your person' was doing, to which the unknown male replied that, 'he is still going steady'. When the applicant asked, 'is basement very strong?', the unknown male commented that it was 'slightly shaken up'. The applicant responded, '... only the body is strong ... the legs below are weak', and said that he 'never had a situation like this in my life'.

35 Finally, on 23 November 2015, the applicant received another call from the Malaysian number, during which the applicant and an unknown male apparently discussed settlement and payment of a large sum of money. In the course of the conversation, the applicant was told: 'It's all settled now ... It's okay now ... now the route is clear ... Now they are running it differently ... they will tell you later ... they will say'.

36 On 4 December 2015, the AFP arrested the applicant at his residence in Perth, Western Australia. Four mobile telephones were located, and police observed a number of suitcases, one of which resembled the suitcases that contained the drugs. The applicant was interviewed, and denied any involvement in the drug importation. He told the AFP that he had mistakenly collected the three suitcases with the drugs from the baggage carousel.

37 The principal submissions made by the applicant's counsel seeking exclusion of the relevant evidence, and the trial judge's reasons for admitting the evidence, may be gleaned from the following extract from his Honour's ruling.

38 In the course of his ruling, the judge observed:[5]

The central point to remember, in my view, is that the one real fact in issue in [the applicant'] trial. He does not dispute that someone imported the relevant drugs into Australia. He does not dispute that the co-accused men were couriers in that importation. He does not dispute that he picked up three suitcases that were not his and sought to leave the Customs Hall before being challenged by Border Control officers. He said at the time and later when interviewed that he mistakenly picked up the wrong cases.

The one fact in issue therefore is can the prosecution rebut or refute his assertion that he accidentally picked up the wrong cases and establish that he was part of the planned importation? Did he know what was in the suitcases? His involvement or connection in any way to the couriers is highly significant and relevant. Who he is talking to at the time he interacts with the cases and baggage services subsequently is clearly relevant to his intent and state of mind at that time. The sheer number and timing of the phone calls made between 18 October and 20 October, in my view, is highly relevant to the central fact in issue. A jury could well give context to these phone calls by reference to the contents of the telephone calls between [the applicant] and Kuppan a month later.

Not all of the contents of those three calls are, in my view, relevant and even if they may be somehow relevant I would exclude some parts of the calls, either by virtue of s 137 of the Evidence Act or pursuant to my general discretion to exclude evidence. It is not helpful for me to give extensive analysis of the three November phone calls. Suffice to say that I accept that a jury could well use the contents of those calls to give context to the 18 to 20 October cluster of calls and find that [the applicant] was making an admission as to his involvement in the 18 October importation. The calls are also relevant for the secondary purposes of establishing the identity of the people involved in the cluster of phone calls on 18 to 20 October.

It is clear that a carefully crafted set of directions will be required to be given to a jury as to how they can properly use the contents of the 3 November phone calls. I will invite counsel subsequently to assist me with those directions.

The prosecution case against [the applicant] is largely circumstantial. The evidence challenged are parts of a puzzle which when viewed individually may have significantly less strength than when viewed in combination. ...

In my view, each of the relevant pieces of evidence in this case do have relevance to a fact in issue for the reasons I have previously said. The combination of these pieces, in my view, could allow a jury to conclude that [the applicant] was part of the joint criminal enterprise to import the drugs contained in the three suitcases.

As I said, not all of the intercepted November calls are so admissible. I will go through with counsel the three transcripts as they now are and indicate what is admissible and what is not. Some of the material perhaps is neutral and I will leave it to counsel as to whether they want it or do not want it before the jury after I have given that indication.

Much of the 19 November and 21 November calls are, in my view, admissible. The call of 23 November is not so clear. That section of the call relating to vehicle numbers, the payment of three to five hundred thousand, the big 'Medu', the seeing of the camera, the reference to uncle's office are, in my view, too vague and too prejudicial to admit. As I say, I will subsequently discuss that with counsel.

The evidence relating to the contact numbers given by the couriers and by Kuppan in their respective visa applications is, in my view, highly probative. If Kuppan is connected to the couriers and is talking to [the applicant] on 18 October at the time of the attempted importation the jury may well conclude that [the applicant] is part of the attempted importation. So with those minor exceptions to which I have referred I find that the disputed evidence is relevant.

Turning to the issue of whether the evidence is so unfairly prejudicial that it ought to be excluded despite its relevance I am of the view that most of the challenged evidence should be admitted. As I have clearly already ruled some of the conversations in November are not relevant at all or if they are they are so vague and non-specific that there is a risk that the evidence could be misused.

[Senior counsel for the applicant] really based his submissions on the issue of relevance, however, in his written submissions he asserted that the evidence of the visa details given by Kuppan and by the three couriers does not prove combination between the parties. He submitted more generally there is no reasonable independent evidence of a combination or agreement between the couriers and Kuppan and [the applicant], nor between [the applicant] and Kuppan or any other unnamed party. He submitted that the facts sought to be led are, 'Shorn of context'. He concluded that to allow the evidence to be admitted would invite the jury to impermissibly speculate. In particular they would lead to an irrational and unfair reasoning by the jury that [the applicant] is involved in a broader and ongoing criminal enterprise in circumstances where this is not supported by other evidence and is not the Crown case.

So far as the cluster of calls is concerned [senior counsel for the applicant] submitted that it ought similarly to be excluded pursuant to or, if it were relevant pursuant to s 137 of the Evidence Act. He submitted that there was a danger of unfair prejudice created by the speculative nature of the evidence far outweighing its probative value. He again submitted that the evidence would encourage the jury to speculate that there is a broader and ongoing criminal enterprise in which the accused is involved. He respectfully submitted that the risk of prejudice is such that it cannot be cured by judicial direction.

I accept that a jury could conclude that [the applicant] is discussing recommencing drug trafficking into Australia. The portions of conversations on 19 and 23 November could lead to such a conclusion. However, the prosecution rely upon the conversations as constituting admissions of failure to import on 18 October. If the jury accept that the conversations do relate to the failed October importation, such evidence is highly probative of [the applicant's] involvement in the October offence.

Its highly probative value in my view outweighs the stated prejudice. The jury would be properly directed that they cannot use the conversations unless they find they do relate to the October importation. An anti-propensity warning would be required and be given. Subject to the editing, I propose to admit the challenging [scil, challenged] evidence.

It needs to be remembered there is no dispute that there was a plan to import the three cases of drugs.

The plan involved the use of couriers, leaving of cases and someone picking them up. [The applicant] did what was clearly the planned role in the importation. Whether he did so innocently or not is of course the question. The importation was a serious and well planned attempt to import a large quantity of drugs to this country. The challenged evidence goes directly to the fact in issue. If [the applicant] was a part of a broader criminal enterprise, a jury could properly conclude that he was so involved on 18 October 2015.

39 Counsel for the applicant submitted that the factual matters alleged against the applicant, relevant to this application, are:

• before 18 October 2015, the applicant knew Kuppan (an uncharged co-offender);
• the three black suitcases containing the illicit drugs were checked-in at Kuala Lumpur on 18 October 2015 by the three couriers, who flew to Melbourne but ultimately did not collect the three suitcases from the carousel;
• on the same date, the applicant checked-in three black bags at Chennai airport in India and flew to Melbourne;
• the applicant is not shown to have contacted the couriers, directly or indirectly, nor any person who did so (hence the prosecution's desire to introduce the 'travel agent' evidence to show 'congruity' of a mobile contact number associated with the Australian visa applications of Kuppan and the three couriers - two days apart - in October 2015, and the 'rarity' of that contact number appearing anywhere else in Department of Immigration and Border Control records);
• upon arrival in Melbourne, the applicant collected three black suitcases from the carousel - the prosecution alleges that these are the three suitcases containing the heroin and methamphetamine - but when they were selected for baggage inspection by ABF personnel, the applicant said the bags were not his, and collected others he claimed to be his own, thence leaving the Customs area;
• immediately thereafter, and over the next two days, he had sought to re-engage with Customs and baggage officials, claiming that something had gone wrong and that he had failed to collect an item of oversized luggage - which item, however, has not surfaced on the 'World Tracer' system - during that time participating in calls to Kuppan and to the '015' number in India (hence the prosecution's wish to lead the evidence of the substantial matrix of connected and attempted calls between two mobile telephone numbers used by the applicant and Kuppan, in combination with calls made and received by both to and from the Indian number); and
• on 19, 21 and 23 November 2015, the applicant spoke to Kuppan and made comments allegedly amounting to admissions to involvement in the importation on 18 October 2015 (hence the prosecution's desire to lead the telephone intercept evidence).

40 It was submitted that the evidence does not reveal any connection between Kuppan and the three couriers before, during or after 18 October 2015. KR, SS and JS are not said to be part of the joint criminal enterprise. Any coincidence of phone numbers, it is submitted, is not logically probative of a link. The evidence discloses no more than the common use of a travel agent. It is 'mere conjecture' to suggest that Kuppan met, assisted, monitored, supervised, facilitated or communicated with the couriers (or their assistants). Indeed, the existence of a link is contradicted, in that, while the telephone numbers are similar, other details, including addresses, are not (in circumstances in which the frequency with which visa applicants to Australia use those phone numbers is not shown to be relevant). For these reasons, the evidence 'is very weakly probative',[6] and its probative value is outweighed by the danger of unfair prejudice since, first, the applicant cannot test weaknesses in the evidence, given that the travel agent and Kuppan will not be called, and the co-offenders are not compellable; secondly, it 'untestably' invites speculation that the applicant has a connection to the couriers through Kuppan; and, thirdly, any non-speculation direction will inevitably invite speculation as to 'a mysterious link'.

41 With respect to the telephone intercept evidence, it was submitted that it is 'incapable of logically yielding the meanings attributed' to it by the prosecution. As to the conversation of 19 November 2015, there is 'no reason in logic' to tie the 'neutral comments' - 'let's start it again'; 'both sides have made mistakes'; 'is the route still there? ... that is all there'; 'our man is still in the same place'; and 'we shall meet in our town. No one should know about it' _ - _ to the importation of 18 October 2015. Furthermore, the comments are 'too fragmentary' to constitute an admission by the applicant. Additionally, on their face these comments are incompatible with known events on 18 October 2015. Similarly, so it was submitted, there is no reason in logic to tie the neutral comments of 21 November 2015 - 'never had a situation like this in my life' and 'is basement very strong?' - to the importation of 18 October 2015, the comments being too fragmentary to constitute an admission. So, too, of the conversation of 23 November 2015, it was submitted that there is no reason in logic to tie the neutral comments - 'It's all settled now' and 'now the route is clear' - to the importation of 18 October 2015. Further, the comments are too fragmentary; and, in any event, are incompatible with known events on 18 October 2015. It was argued that each call 'is weakly probative', in that the conversations occur over four weeks after the alleged importation; the conversations contain no express or implied admission to the offence, or to an importation; the calls make no reference to Melbourne, or to October 2015; the conversations are brief and 'almost entirely shorn of context'; and the guilty construction of the calls requires either unprovable assumptions to be accepted, or the guilt of the applicant to be assumed. The prejudice is strong, because on the prosecution case, the calls suggest present and ongoing criminal involvement in drug importation; and an 'anti-propensity' direction will be needed.

42 The applicant's counsel also contended that the evidence of the call charge records was not probative of any fact in issue and was thus irrelevant. It was submitted that the call charge records 'only establish that there was telecommunications activity between services and the frequency of that contact'. There is no evidence as to the content of the communications. The commonality of contact between Kuppan, the applicant and the Indian '015' number 'is devoid of relevance in circumstances where the identity of the Indian party is unknown'. Moreover, it was submitted, it is not alleged by the prosecution that the importation originated in India, nor is there any evidence which could rationally support that proposition. For the same reasons that the travel agent material lacks probative value, as set out above, the evidence of the call charge records is not probative of a criminal link between the applicant and the three couriers. Even viewed in the context of the telephone intercept material, the probative value of call charge records 'is not elevated to the point of admissibility'. The telephone intercept material 'does not assist in finding a criminal purpose' in the telecommunications contact which the call charge records record. If the travel agent and telephone intercept material is excluded, 'it follows that the call charge records material is deprived of any possible relevance and ought be excluded'. Additionally, it is submitted that if the evidence is probative, then it 'is weakly probative'. The evidence of the call charge records 'invites speculation that the telecommunications concern the failed importation'. Judicial direction, it was submitted, would only elevate the importance of the evidence of the call charge records in the jury's mind. In circumstances where its probative value is 'so negligible', the evidence ought be excluded.

43 Counsel for the respondent was not called upon to make oral submissions. In advance of the hearing, however, the Court had the benefit of counsel's written submissions.

44 In summary, counsel for the respondent submitted:

• the impugned evidence is highly probative of the intentional involvement of the applicant in an international plan for three couriers to import three suitcases containing large commercial quantities of methamphetamine and heroin into Australia through Melbourne International Airport with the intention that the couriers not then take possession of the suitcases upon their arrival into Australia;
• it was an essential part of the plan that someone else on the same flight would take possession of those three suitcases and then hopefully exit the airport without any examination of the contents of the baggage;
• the applicant's 'defence' is that he mistakenly took possession of each of the three suitcases, tagged in three other names and much heavier than his own, and that he had no association with anyone linked to the international importers;
• quite apart from the applicant's activities at Melbourne International Airport on 18 and 19 October 2015, the 'timing and duration' of the various telephone contacts involving the applicant 'is probative of their purpose'; and
• further, the 'provable identity' of Kuppan - then in Melbourne - is probative in combination with his later intercepted telephone conversations with the applicant, and Kuppan's 'shared visa link' with the three couriers.

45 Subject to exclusionary rules, evidence that is relevant is admissible;[7] and evidence that is irrelevant is inadmissible.[8] Relevant evidence 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.[9]

46 One of the facts in issue in the applicant's trial - perhaps the central fact in issue - is whether the applicant was involved in a criminal enterprise which had as its object the importation of heroin and methamphetamine into this country via the medium of couriers transporting the drugs in suitcases. Once it is recognised that this is so, it must be accepted that - subject to exclusionary rules - evidence which tends to connect the applicant to the couriers and to their transportation of the drugs is, on its face, relevant and admissible.

47 In Director of Public Prosecutions v Paulino, it was observed:[10]

Probative value is defined in the Dictionary to be 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'.[11] The assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest.[12]

In Wise, the Court observed that determining whether a piece of evidence has the capacity to 'rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue' involves an exercise in logic.[13] In other words, in order for evidence to be relevant, it must render a fact in issue more probable than it would be without the evidence. As Gleeson CJ, Heydon and Crennan JJ said in Washer:[14]

... Relevance depends upon whether the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[15] That can be determined only by an analysis of the facts in issue in the proceedings, and the circumstances which bear upon the question of probability. It also requires consideration of the process of reasoning by which information as to the fact of the acquittal could rationally affect the assessment of the probabilities. The word 'rationally' is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury's assessment of the probability of the existence of a fact in issue at the trial.

In context, s 55(1) of the Evidence Act directs attention to whether the disputed evidence, 'if it were accepted'[16] by the jury, 'could' - not 'would' - 'rationally affect' the assessment of the probability of the existence of a fact in issue. As was pointed out in Washer, the adverb 'rationally' is significant. Thus, there must be a logical connection between the evidence and the fact in issue. If a trial judge is satisfied that a reasonable jury could find such a logical connection, then he or she must determine the evidence to be relevant. Although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised.[17] Therefore, ambiguity or apparent inconsistency is not a sufficient reason to reject evidence in a criminal trial.[18] Moreover, in judging relevance, the contested evidence must not be looked at in isolation.[19] As Heydon J observed in Evans:[20]

... The relevance of evidence does not depend on its capacity by itself to prove the prosecution case on a particular issue, or to raise a reasonable doubt in favour of the defence on that issue. The effect on assessing probability which is to be looked for is the effect of the contested evidence taken with other evidence either admitted by the time the controversial evidence is tendered, or to be called.

48 On the available material, it seems that the prosecution has ample evidence at its disposal to demonstrate that the applicant had a connection with Kuppan, and that his contact with Kuppan by telephone was particularly intense in the period after the drugs had arrived on 18 October 2015, and throughout the whole of 19 October 2015. Kuppan, in turn, could be linked to the three couriers through a common connection to the Kuala Lumpur travel agent, GS Travel, and the commonality of details between his and the couriers' visa applications. Thus, Kuppan's Australian entry visa was issued two days prior to the issue date of visas for each of the three couriers, in circumstances in which it contained a contact telephone number the same as that contained in the couriers' visa applications, that shared Malaysian telephone number being found in only eleven recorded Australian visa applications. The apparent rarity of that shared contact telephone number is, as a matter of logic, plainly relevant to an assessment of whether the evidence is capable of showing a connection of the applicant to the couriers, particularly when one considers that Kuppan's application was temporally closely proximate to the applications made by the couriers.

49 Rather than being 'weakly probative', as the applicant asserts, we regard the evidence connecting Kuppan to the couriers via the commonality of details in the visa applications as being significantly probative. It does not matter, in our view, as was submitted by the applicant, that the evidence might not establish a direct connection between the couriers and the applicant, since it is capable of establishing a connection to Kuppan who, in turn, has a connection to the applicant.

50 The evidence of the visa applications cannot be viewed in isolation. It must be viewed as but one piece of evidence going to make up the prosecution's overall circumstantial case. Taken with the other evidence, the evidence is capable of rationally affecting the assessment of whether the applicant was a party to a plan to import drugs into this country using couriers transporting the illicit cargo in suitcases.

51 As we have said, the evidence of the visa applications is significantly probative. Its probative value clearly outweighs any risk of unfair prejudice, hence s 137 of the Evidence Act 2008 is not engaged. But we observe, in any event, that we reject the submission that there is a danger of unfair prejudice because the circumstances surrounding the visa applications cannot be adequately explored.

52 With respect to the 'pattern of phone calls' involving the applicant, Kuppan and the 015 number between 18 and 20 October 2015, this evidence clearly is relevant and admissible. We agree with the respondent's submission that the 'timing and duration' of the various telephone communications involving the applicant 'is probative of their purpose'. Once more, this piece of evidence cannot be looked at in isolation. When it is viewed against the backdrop of the applicant's contemporaneous apparent attempts to obtain possession of the suitcases, it points strongly to his participation in a joint criminal enterprise with Kuppan concerned with the importation of heroin and methamphetamine via the agency of couriers. It follows that we reject the suggestion that the probative value of the evidence is weak, or that s 137 is engaged.

53 Finally, in our view the jury might well use the intercepted telephone conversations in assessing whether they are satisfied that the applicant was party to a joint criminal enterprise to import drugs. It seems to me that the intercepted telephone conversations, when taken with the other evidence in the prosecution's case, are capable of being viewed as referable to the failed importation a month earlier, and of the involvement of the applicant and Kuppan in that failed importation. Thus, in our view, at the very least the conversations might logically be interpreted by a jury as revealing a shared focus on a recent past failure, mistakes having been made on both sides. The conversations might also be seen as suggesting that the current situation is unstable, combined with a hope that the 'route' is still open. Moreover, the conversations are a further piece of evidence capable of strengthening proof of the connection between Kuppan and the applicant. The contentions that the evidence is 'weakly probative'; that the conversations are brief and 'almost entirely shorn of context'; and that the guilty construction of the calls requires either unprovable assumptions to be accepted, or the guilt of the applicant to be assumed, cannot be accepted. Taken as part of the prosecution's circumstantial case globally, the jury might justifiably regard the intercepted telephone conversations as highly probative of the applicant's involvement in a failed drug importation.

54 None of the submissions made in support of the two grounds of appeal could be upheld. It was for that reason that leave to appeal was refused.

Interlocutory appeals and routine evidentiary rulings

56 It must be said again - and, it is to be hoped, in future heeded - that interlocutory appeals are not suitable vehicles with which to challenge routine evidentiary rulings. As Weinberg JA observed recently in Paulino:[21]

This Court has, on a number of occasions, referred to the undesirability of interlocutory appeals being brought on evidentiary questions. That is so irrespective of whether it is the Crown or the accused who seeks leave to appeal. In Wells v The Queen [No 2][22] I spoke out against the bringing of such appeals when all that was in issue were 'evidentiary rulings of a kind which are routinely made every day'. Other members of this Court have, from time to time, expressed similar views.

When the legislature in this State first made provision for interlocutory appeals in criminal matters, it was careful to stipulate that a trial judge should be satisfied, before certifying, that the exclusion of any item of evidence in dispute would 'eliminate or substantially weaken' the prosecution case. In erecting that barrier to certification, the legislature expressly distinguished challenges to evidentiary rulings from challenges to non-evidentiary decisions.

It is important to emphasise the significance of that distinction. It is worth repeating that, before certifying, a trial judge must be satisfied that the exclusion of the evidence would 'eliminate or substantially weaken the prosecution case'. The word 'eliminate' has only one possible meaning. It connotes that there must be no case at all without that evidence. The alternative limb, namely 'substantially weaken', clearly involves questions of degree, and matters of discretion. The word 'substantial' is not a word with fixed meaning in all contexts. It is susceptible of ambiguity, and can conceal a lack of precision.[23] On any view, it should be read in context and, in accordance with the Latin maxim, noscitur a sociis.[24] Thus, 'substantially weaken', in the context in which that expression is used, suggests something not very far short of elimination, rather than merely significant, or important.[25]

Before a trial judge certifies in relation to an evidentiary ruling, he or she must be satisfied that if the evidence is ruled inadmissible, its exclusion could realistically be expected to affect the outcome of the trial. In my view, having regard to the strong public policy reasons for discouraging interlocutory appeals in criminal matters in general, and particularly those involving nothing more than points of evidence, nothing short of a test approached with that degree of rigour will suffice.

57 Similar views were expressed in Director of Public Prosecutions v Pace (a pseudonym):[26]

The common law set its face against the fragmentation of criminal proceedings.[27] In our view, the introduction of a regime for interlocutory appeals in criminal cases, introduced as recently as 1 January 2010, was not intended to derogate from the overarching notion that fragmentation of criminal proceedings is undesirable. Indeed, one may readily discern from the text of the statute governing interlocutory appeals that it was not the legislature's intention that fragmentation of criminal proceedings should ordinarily be contemplated. Thus, once a trial has commenced, leave to appeal may only be granted if the reasons for doing so clearly outweigh any disruption of the trial.[28] Moreover, leave may only be granted if it is in the interests of justice to do so, having regard to the extent of any disruption or delay to the trial process that may arise if leave is given.

Indeed, the language of the statute makes it plain that interlocutory appeals should not be the norm, and should be reserved for unusual cases where the determination of an appeal against an interlocutory decision may render the trial unnecessary; substantially reduce the time required for the trial; resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial. These fetters on appellate intervention emphasise, in our view, that Parliament intended to uphold the authority of the trial judge,[29] and that such authority should not lightly be interfered with. Thus, in our view, without seeking to be overly prescriptive, leave to appeal an interlocutory decision should not readily be granted, and should only be granted if, for example, it can clearly be discerned that there has been some error of principle which may lead justice to miscarry, or which may be permeated unless corrected. This case does not come close to fitting that mould.

The regime for interlocutory appeals was not designed to cater for appeals against routine evidentiary rulings - as the impugned ruling is - made in the ordinary course of a criminal trial. It must be said - and cannot be ignored - that the already overloaded system of criminal justice in this State simply cannot cope with, and should not have to tolerate, interlocutory appeals directed to issues of little moment.

58 The present case involved routine evidentiary rulings concerning evidence which, if excluded, would not have eliminated or substantially weakened the prosecution case. This was neither a suitable case for certification, nor for further challenge to the evidentiary ruling by way of interlocutory appeal.

59 Appeals against interlocutory evidentiary rulings under s 137 (and other provisions) of the Evidence Act 2008 are - as the applicant's counsel acknowledged - governed by House[30] principles.[31] Hence, a judge considering certification, and a party considering whether to seek leave to appeal, must bear steadily in mind that, absent specific error, an interlocutory appeal cannot succeed unless it is demonstrated that it simply was not open to the judge to reach the decision that he or she did. It needs to be understood that the clear legislative intention is that interlocutory appeals on evidence should be strictly confined, and that there must be an insistence upon appellate restraint at an interlocutory stage.[32] Interlocutory appeals based on routine evidentiary rulings are antagonistic to those imperatives.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and certain other people.

[4] During the hearing in this Court, counsel for the applicant accepted that the evidence demonstrated that this was so.

[6] See Bayley v The Queen [2016] VSCA 160, [53]-[55]; Evidence Act 2008 s 137.

[7] Evidence Act 2008 s 56(1).

[8] Ibid s 56(2).

[9] Ibid s 55(1). See also R v Chee [1980] VicRp 32; [1980] VR 303, 308; DPP v Kilbourne [1973] AC 729, 757; R v Stephenson [1976] VicRp 34; [1976] VR 376, 380-1; Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024, 1025 [2]; [2002] HCA 31; (2002) 190 ALR 370, 371 [2]; R v Priest [2002] VSCA 215; (2002) 137 A Crim R 133, 140 [19]; Semaan v The Queen (2013) 39 VR 503, 508 [28].

[10] [2017] VSCA 38, [65]-[67] (Priest JA) ('Paulino') (citations in original).

[11] In R v Chee [1980] VicRp 32; [1980] VR 303, the Court (McInerney, Anderson and Brooking JJ) described the position at common law (at 308):

Putting aside exclusionary rules, the test of admissibility of evidence is whether it is probative: i.e. whether it increases or diminishes the probability of the existence of a fact in issue: Director of Public Prosecutions v Kilbourne, [1973] AC 729, at p. 757; [1973] 1 All ER 440. If evidence offered has this tendency, it may be said to have probative force.

[12] IMM v The Queen (2016) 330 ALR 382, 391 [44] (French CJ, Kiefel, Bell and Keane JJ) ('IMM').

[13] DPP v Wise [2016] VSCA 173], [68].

[14] Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492, 498 [5].

[15] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 at 1025 [2]; [2002] HCA 31; 190 ALR 370 at 371. The definition of relevance is taken from the Evidence Act 1995 (Cth), s 55. That legislation does not govern the present case, but the definition reflects the common law.

[16] See Adam v The Queen (2001) 207 CLR 96, 105 [22] (Gleeson CJ, McHugh, Kirby and Hayne JJ).

[17] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, 653 [6] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[18] R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629, 646 [90] (Whealy J); Louizos v The Queen [2009] NSWCCA 71; (2009) 194 A Crim R 223, 230 [31] (Howie J).

[19] [Bayley v The Queen [2016] VSCA 160], [130]-[131].

[20] Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521, 568 [177].

[21] Paulino [2017] VSCA 38, [7]-[10]. See also MA v The Queen [2011] VSCA 13; (2011) 31 VR 203, 207 [12] (Redlich, Weinberg and Bongiorno JJA).

[22] [2010] VSCA 294 (Weinberg JA).

[23] In Re Bonny [1986] 2 Qd R 80, Ambrose J said at 82: 'In my view, when considered in the context of a definition that talks of a person who is "wholly or substantially dependent on" another, the term "substantially" connotes "in the main" or "essentially".'

[24] The meaning of a word is known from the accompanying words.

[25] See [Paulino [2017] VSCA 38, [50]] and footnotes contained therein.

[26] (2015) 45 VR 276, 283-4 [24]-[26] (Priest and Beach JJA) (emphasis added).

[27] R v Elliott [1994] HCA 60; (1996) 181 CLR 338, 257. See also Smith v The Queen [1994] HCA 60; (1994) 181 CLR 338, 346.

[28] [Criminal Procedure Act 2009], s 297(2).

[29] Cf R v Steffan (1993) 30 NSWLR 633.

[30] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[31] KJM v The Queen [No 2] [2011] VSCA 268; (2011) 33 VR 11, 13 [12] (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA) ('KJM'); McCartney v The Queen (2012) 38 VR 1, 11 [47]-[48] (Maxwell P, Neave JA and Coghlan AJA).

[32] KJM [2011] VSCA 268; (2011) 33 VR 11, 13 [13]; CGL v DPP [No 2] [2010] VSCA 24; (2010) 24 VR 482, 483 [4]-[5] (Maxwell P, Buchanan and Bongiorno JJA).