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[2018] VSCA 100
General information, not legal advice.
Court of Appeal (Vic)
2018-04-20
Mr J, Ashley JA, Weinberg JA, Santamaria JA, Kyrou JA
Original judgment source is linked above.
DPP v Lin (Unreported, County Court of Victoria, Judge Coish, 26 October 2016)
CRIMINAL LAW - Appeal - Conviction - Applicant charged with importing a commercial quantity of a border controlled precursor (pseudoephedrine) - Whether evidence of prior uncharged importation admissible - Evidence relevant to applicant's state of mind and to rebut defence that he accepted package for work colleague - Ivanoff v The Queen [2015] VSCA 116.
Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
1 On 26 May 2016, the applicant was convicted, in the County Court at Melbourne, of one charge of having imported, from China, a commercial quantity of a border controlled precursor, pseudoephedrine. On 26 October 2016, he was sentenced to eight years' imprisonment with a non-parole period of five years and six months. He sought leave to appeal against both conviction and sentence.
2 The applicant initially relied on the following ground in support of his application for leave to appeal against conviction:
A substantial miscarriage of justice was caused by the learned trial judge in permitting the prosecution to lead evidence which was unfairly prejudicial to the applicant.
3 The evidence said to have been 'unfairly prejudicial' was that of an earlier importation of pseudoephedrine from China (hereafter 'importation 1'). The trial judge had permitted the prosecution to lead that evidence in reliance on a principle said to have been explained in Ivanoff v The Queen.[1]
4 On 26 April 2017, Ashley JA, sitting as a single judge, referred the application for leave to appeal against conviction to this Court. In doing so, his Honour observed that that there was a real question as to whether the trial judge had acted correctly in applying Ivanoff as the basis for admitting the evidence of importation 1.
5 His Honour refused the application for the leave to appeal against sentence. The applicant has not sought to challenge that refusal.
6 In the applicant's amended written case dated 26 February 2018, the sole ground of appeal put forward in support of the application for leave to appeal against conviction was reformulated as follows:
The trial judge erred by ruling that evidence of the previous importation was admissible, and the erroneous admission of that evidence has resulted in a substantial miscarriage of justice.
7 The applicant owned and operated a landscaping business. From late June to August 2012 he, along with various employees, performed landscaping work at a property located at 24 Shannon Street, Box Hill.
8 On or about 31 July 2012, a FedEx package sent from China and addressed to an individual named 'Chen Fen' arrived at Melbourne Airport. The consignee's address was described as 22 Shannon Street, Box Hill, next door to where the applicant was carrying out landscaping work. The customs form attached to the package described its contents as 'water parifiers [sic] accessories'.
9 The sender of the package was listed as 'Feng Wang', of Chegonmiao Station, Shenzhen City, China.
10 Customs officials examined the package, which contained eight stainless-steel water purifiers. There was a pink and yellow granular substance concealed within the purifiers, amounting to some 7645.8 grams in total. About a third of that substance consisted of pure pseudoephedrine.[2] Customs officers substituted an inert substance for the granules in seven of the eight purifiers.
11 On 2 August 2012 at around 3.20pm, the package was delivered to 22 Shannon Street, Box Hill. The managed delivery was effected by a Customs officer purporting to be a FedEx courier. The applicant was, at that time, carrying out landscaping work next door at 24 Shannon Street.
12 When the Customs officer parked his van in the driveway of 22 Shannon Street, the applicant approached him. The applicant said that he knew the man named Chen (the consignee named on the package), and that Chen was not at home. The Customs officer replied that he would nonetheless attempt to deliver the package to the designated address. The applicant then followed him to the front door of that property.
13 The occupant of 22 Shannon Street, Mr Kevin Pai, refused to take possession of the package. The applicant, in the presence of the Customs officer, spoke with Mr Pai in Mandarin. He told him that Chen Fen was a friend of his, and that the sender had written the wrong address on the package. He said that it contained kitchenware, and added that it had always been intended that the package be addressed to 24 Shannon Street, and not to Mr Pai's address. He asked Mr Pai to sign for the package. However, Mr Pai refused to do so.
14 The Customs officer, in the course of further discussion with the applicant, told him that he would not hand over the package to him without first sighting some identification. The applicant replied that he had no identification on him. It was then agreed that the applicant could take delivery of the package if he gave the Customs officer his personal details. The applicant wrote on the FedEx delivery sheet 'Weng Biao Ling', and his address in Sunshine West.
15 The applicant then pointed to the footpath and said to the Customs officer, 'you leave it there. I won't take it'. The Customs officer asked, 'do you want it or not?'. At that point, the applicant picked up the package and put it on the footpath, outside 24 Shannon Street.
16 The applicant then got into a motor vehicle belonging to one of his workers. After sitting in the car for a short time, he once again went up to the front door of the house occupied by Mr Pai. He told Mr Pai that he now had the package, and asked him whether he could leave it inside Mr Pai's gate. It seems that Mr Pai said no.
17 Soon after, the applicant was arrested. He had in his possession three mobile telephones, each containing SIM cards, none of which was registered in his name. The FedEx tracking number of the package was recorded within one of the phones.
18 At the time of the applicant's arrest, the package was adjacent to the fence between Mr Pai's property and 24 Shannon Street. The package was left in that position and monitored for some time, and no one attempted to collect it.
19 In his record of interview dated 2 August 2016, the applicant denied any involvement in the importation of drugs. He told police that he was merely collecting the parcel for one of his workers, a man named 'Xue Kai'.
20 The applicant claimed that Xue Kai had telephoned him on the previous day, and asked him to sign for a package that he was expecting. He said that Xue Kai had provided him with the FedEx tracking number, which he had recorded in one of his mobile telephones. He added that Xue Kai had asked him to leave the package at 24 Shannon Street, and that he would arrange for it to be collected from that address at a later time.
21 The applicant told police that the man whom he believed at the time to have been a FedEx courier had asked him, when they first spoke, 'are you Chen?'. He said that he had responded, 'who's Chen?'.
22 He then said that the courier had insisted on him signing for the package, and therefore he did. He said that he was not intentionally waiting for it to arrive. He said, 'if it's drug I have no idea. I don't know, I dare not pick up. If I knew it was a drug I would have approached the police and then get a reward'.
23 The applicant went on to volunteer that he had, earlier that year, agreed to pick up a package for a former worker, a man who also happened to be called 'Kai', or in English 'Kevin'. The applicant said that this was not the same person as Xue Kai.
24 The applicant told police that on that previous occasion, he had invited the man he knew as Kevin to have a meal with him at his house at Christmas. Kevin had asked him, on that occasion, to collect a package for him. As a favour to Kevin, the applicant had attended a post office at Bundoora in order to pick up the package. He had produced his identification, and provided the tracking number of the package, but had been told that it was not there. He told police that he had no idea, at the time, that the package contained drugs. He said that he was only subsequently told that by police.
25 In a second record of interview dated 6 August 2012, the applicant provided a more detailed explanation of what had taken place at Shannon Street several days earlier. He said that when the man whom he believed at the time to have been a FedEx courier approached the house at 22 Shannon Street, he thought that he might be able to assist by interpreting for Mr Pai. He said that when the courier had asked him if he was 'Chen Ming', he had replied 'I'm not'.
26 The applicant re-affirmed that he had been asked by Xue Kai to receive the parcel on his behalf. He reiterated that Xue Kai had telephoned him on the previous day, asking him to receive a package and had provided him with a tracking number. He repeated that Xue Kai had told him to leave the package at 24 Shannon Street, and it would be collected later.
27 The applicant denied having provided that address to anyone in China. He specifically blamed Kevin and Xue Kai for what had occurred in January and August 2012 respectively.
28 The prosecution case against the applicant was put on two quite separate bases. Primarily, it was said that the applicant had arranged the importation of the pseudoephedrine himself. Plainly, if that were established, there would be no real issue as to the applicant's knowledge or intent.
29 However, the prosecution put forward an alternative case. This was that the applicant, though not the actual importer, had become involved in the importation, and was therefore guilty of the offence charged when he agreed to assist whoever it was that had orchestrated the arrival of the package from China.
30 As regards that alternative case, the main issue at trial concerned the applicant's state of mind; whether he intentionally facilitated the importation of a substance (as distinct from a package), and whether he knew, believed or was reckless as to whether that substance was a border controlled precursor.
31 The prosecution initially sought to rely upon evidence of three prior importations of packages, all of which could be linked in various ways to the applicant. It was alleged that the facts of each importation had similarities of sufficient strength to render them admissible as coincidence evidence pursuant to s 98(1) of the Evidence Act 2008.
32 The first of these importations occurred on 20 December 2011. A package was imported from China into Australia which contained 1492 grams of pink and yellow granules (30 per cent pure pseudoephedrine) hidden inside a deep fryer. The package was addressed to 'Wen Kai' at 1 Robbins Court, Bundoora.
33 The sender of the package was noted to be 'Long Chen', of Zhengshou, China. The package was sent from Chegongmiao Station, Shenzhen City, China.[3]
34 On 5 January 2012, in the late afternoon, the applicant attended the Bundoora Post Office and said that he was picking up a package for a friend. He provided, as identification, a learner's permit. The package was not yet at the post office so he was unable to collect it. He requested that the package be redirected to his residence at Sunshine West.
35 On 9 January 2012, the applicant spoke with police about that package. They told him that the package contained pseudoephedrine, and added that this was used to make amphetamine or speed.
36 The applicant told police that he had received a phone call at lunchtime on 5 January 2012 from a casual contractor of his, Kevin, whom he had only known for about ten days at that time. He said that Kevin had asked him to go to the post office to collect a parcel for him.
37 The prosecutor acknowledged at trial that some unspecified person had eventually collected that package from the post office. No charges were laid against the applicant arising out of that incident.
38 On 21 July 2012, another package arrived by post from China. The package was addressed to a 'Chen Fen', of a company called Carry Australia Ltd, at 22 Shannon Street, Box Hill. As noted previously, the applicant was carrying out landscaping work next door, at 24 Shannon Street, at that time. The sender of the package was noted to be 'Feng Wang' of Ningbo, China. The contents of that package were described as an 'iron box'.
39 On 23 July 2012, the package was delivered by FedEx to a person claiming to be 'Chen', at 22 Shannon Street. No one by that name lived at that address. The contents of that package were unknown, and no charges were ever brought in relation to that importation.
40 On 25 July 2012, a third package arrived in Australia, again sent from China. The declared contents of the package were 'water purifier accessories', the same designation as was noted on the package the subject of the charged offence. The consignee was 'Chan Ming', of 50 Pleasant Rd, Hawthorn East. As it happened, between 21 and 30 July 2012, the applicant had carried out landscaping work at that particular address.
41 The sender of that package was described as 'Feng Wang', and it originated from Chegongmiao Station, Shenzhen City.[4]
42 On 25 July 2012, the occupant of the house at 50 Pleasant Rd, Hawthorn East refused to take delivery of the package. Later that day, it was collected at a FedEx depot in Derrimut by a person giving his name as 'Zhun Jiu Ching'. This person gave his address as the applicant's then address in Sunshine West. Zhun Jiu Ching approximates the name of the applicant's brother-in-law, who lived with the applicant at the time.
43 The contents of that particular package were unknown. Accordingly, no charges were laid in relation to that importation.
44 The trial judge was not satisfied that the similarities between the events, or circumstances surrounding the four importations were sufficient to enable evidence of importations 1, 2 and 3 to be led in support of the importation the subject of this appeal.
45 His Honour observed that the only connection between the applicant and importation 2 was that the applicant worked periodically at the property next to the delivery address.
46 With respect to importation 3, his Honour said that, while the delivery address could be linked to the applicant, there was no specific evidence of any connection between himself and the package. In addition, as previously indicated, there was no evidence of the contents of the packages that were the subject of importations 2 and 3.
47 His Honour concluded that the position was different with regard to importation 1. There, although the evidence concerning that importation could not be led as coincidence evidence, it was admissible via an alternative route put forward by the prosecution.
48 That alternative route was that the evidence concerning importation 1 was relevant and admissible in two ways. First, it would rebut the defence put forward by the applicant in his two records of interview in August 2012 that he had accepted the package on behalf of two quite separate contractors of his, neither of whom had worked with him for long, but had asked him to take delivery of these packages on their behalf. Secondly, this evidence was admissible in order to prove that the applicant had the requisite state of mind for the offence charged, essentially recklessness, that being the state of mind necessary to establish the prosecution's alternative case.
49 In his ruling,[5] the judge referred to the applicant's record of interview of 9 January 2012, regarding importation 1. He noted that the applicant had told police on that occasion that he had been asked to collect a package by someone named Wen Kai or Kevin, who had done some casual work for him. He further noted that in the course of that interview, police had told him that the package had contained pseudoephedrine, and that this substance was used to make amphetamine or speed.
50 His Honour compared what the applicant had told police in January 2012 with his two records of interview in August 2012. He noted that, in the first of those records of interview, the applicant had himself volunteered the information that he had, on an earlier occasion in January of that year, agreed to collect a package for a casual contractor.
The issues in this trial concern the accused's acts on 2 August 2012 and his state of mind. I am satisfied this evidence of the first importation is directly relevant to the accused's state of mind - a central issue in the trial - and to rebut a defence that the accused accepted the package on behalf of a work colleague. (See Ivanoff v The Queen [2015] VSCA 116).[6]
52 It is plain from this ruling that his Honour considered the evidence concerning importation 1 to be both relevant and admissible, but not as coincidence evidence. That ruling is, in part, the subject of this ground of appeal.
Ruling on s 137 of the Evidence Act 2008
53 The judge, having ruled the evidence of importation 1 to be admissible, went on to consider whether, in the exercise of the power conferred by s 137 of the Evidence Act 2008, that evidence should nonetheless be excluded on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused.
An application has been made by the defence to exclude the evidence of the first importation pursuant to s 137 of the Evidence Act 2008. I am satisfied that the probative value of that evidence is high. The evidence will be the subject of detailed directions and I am not satisfied that the probative value is outweighed by the danger of unfair prejudice to the accused. I therefore propose to allow the prosecution to adduce that evidence.[7]
55 The judge was asked to give the jury a direction pursuant to s 29 of the Jury Directions Act 2015, warning them of the dangers of tendency or coincidence reasoning in relation to importation 1, notwithstanding the fact that, in one sense, the applicant's conduct in January 2012 was not relevantly 'misconduct evidence'. It was submitted that there was a danger that the jury, unless sufficiently warned against propensity reasoning, might treat the applicant as having 'got away with it once', but being deserving of conviction in respect of the charge then under consideration.
56 His Honour gave the jury the warning that was sought. He said:
The prosecution led evidence that the accused tried to collect a package from a post office for an employee in January 2012. You have the statement of agreed facts or admissions document, paragraphs 13 and following, which sets out various facts which have been agreed in relation to that. You will see those facts, this is Exhibit 8, you all know what I am talking about, this is the post office earlier incident.
The prosecution says that this evidence is relevant because it shows the accused's alleged state of mind at the time of this offence. This offence is August 2012 and the prosecution says that evidence concerning the January 2012 incident is relevant as demonstrating the accused's state of mind in August 2012. The prosecution argues the evidence is relevant as demonstrating that the accused knew or believed that there was pseudoephedrine in the August 2012 package or was reckless as to that fact, and the prosecution also argue that the earlier events are relevant as rebutting the explanation given by the accused in August 2012 which was that he was simply asked by an employee to collect a package.
In terms of the December 2011/January 2012 events of which there is evidence in the agreed statement of facts, and there is also the accused's account of what occurred in his records of interview. You must keep this evidence in perspective. It is only one part of the prosecution's case. As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice because of what you learn about the accused, the evidence has been led for the limited purpose of showing that the accused had the requisite state of mind in August 2012 and to rebut his explanation in August 2012 that he was collecting a package for an employee. You must not use the evidence for any other purpose.
57 The judge went on, shortly afterwards, to remind the jury of how both the prosecution and defence sought to have them deal with the evidence concerning importation 1. His Honour said:
The prosecutor argued that the evidence of the earlier package containing pseudoephedrine delivered in about January 2012 was highly relevant as the accused was well and truly on notice that pseudoephedrine had been in that package, that it was a precursor used to make methamphetamine, or used to make drugs, and this went directly to his state of mind in August 2012 and to rebut the defence that he is now putting to you.
The prosecutor also drew your attention to the three phones and four SIM cards which were not in the accused's name. It was argued this all went to distance the accused from this importation.
In essence the prosecution case is a circumstantial case whereby the prosecutor says look at all the facts and circumstances established on the evidence and from those facts and circumstances the only reasonable inference is that the accused intended to import pseudoephedrine and knew, believed or was reckless, as to the fact that the package contained pseudoephedrine. It is submitted on behalf of the prosecution that your verdict to Charge 1 should be guilty. If for any reason, and the prosecutor submitted there was no good reason, but if for any reason your verdict was not guilty as to Charge 1, it was submitted your verdict ought be guilty as to Charge 2.
The defence arguments were firstly that just because a person may have done a dumb thing eight months earlier did not mean that that person had a particular state of mind at a later time. Just because the accused might have acted unadvisedly in January 2012 did not mean that he had the requisite state of mind in terms of intention, knowledge, belief or recklessness in August 2012.
58 No exception was taken to his Honour's charge to the jury regarding the use that they might legitimately make of importation 1. Nor, as has been seen, is any complaint made about his Honour's direction to the jury as to that matter. The only issue now before this Court is whether the evidence in question should have been excluded pursuant to s 137 of the Evidence Act 2008.[8]
59 Before this Court, the applicant accepted, at least broadly speaking, the summary of events which occurred at Box Hill on 2 August 2012 as described earlier in these reasons for judgment. He denied, however, that he had orchestrated the delivery of the package, or that he had known, or been reckless, as to whether it contained a border controlled substance.
60 It was conceded in oral argument before this Court that, after learning that the package that the applicant had been asked to collect in January 2012 had contained pseudoephedrine, he ought to have been on 'some level of notice' as regards the risks of acting in that way a second time.
61 Before this Court, counsel relied heavily upon the fact that the applicant had not been shown to have been implicated in any wrongdoing with respect to importation 1. He had not ultimately collected the package. The only evidence that he knew that it contained drugs flowed from what the police had told him when they interviewed him about his involvement with that package.
62 Counsel highlighted the danger that the jury might misuse the evidence of importation 1 by engaging in tendency reasoning, notwithstanding the warning that the trial judge gave them against doing so. It was submitted that the potential for the jury to reason that because the applicant had 'got away' with an importation of drugs once before, he was likely to have attempted such an importation again, was said to be sufficiently real to give rise to unfair prejudice, and to require the exclusion of that evidence under s 137.
63 With regard to Ivanoff, it was submitted that the facts of that case were very special, and clearly distinguishable from those surrounding importation 1. In particular, in Ivanoff there was no doubt that the accused had engaged in previous drug trafficking involving cannabis. That led inexorably to the inference that he knew full well how much cannabis, by weight, he was growing when he committed the offence of cultivation of a commercial quantity.
64 In the present case, however, there was nothing to establish directly that the applicant had engaged in any drug-related wrongdoing in January 2012. Accordingly, so it was submitted, there was no justification for admitting the evidence of his connection to the earlier importation. This was not only because that evidence failed to meet the requirements of admissibility as coincidence evidence, but also because it fell entirely outside the Ivanoff principle.
65 The Crown submitted, in relation to its alternative case, that the evidence of importation 1 was 'highly relevant' to the applicant's state of mind when he took possession of the package in August 2012. That is, based on the applicant's experience in January of that year, he surely would have been on high alert when asked by a different casual worker, whom he barely knew, to pick up another package.
66 Accordingly, so it was said, the applicant must, at the very least, have been reckless as to the possibility that the package contained drugs, or a precursor.
67 It was further submitted by the prosecutor before this Court that the trial judge had given the jury a clear direction as to the limited purpose for which the evidence of importation 1 had been admitted. That direction included a specific warning against tendency reasoning.
68 Section 307.11 of the Criminal Code Act 1995 (Cth) is in the following terms:
307.11 Importing and exporting commercial quantities of border controlled precursors
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(c) the substance is a border controlled precursor; and
(d) the quantity imported or exported is a commercial quantity.
...
(2) The fault element for paragraph (1)(c) is recklessness.
(3) Absolute liability applies to paragraph (1)(d).
69 The same Act relevantly defines 'recklessness' as follows:
5.4 Recklessness
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
...
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
70 His Honour referred to Ivanoff in ruling that the evidence of importation 1 was admissible. In that case, the accused's previous conviction for having attempted to traffick a commercial quantity of cannabis was held to be admissible as evidence of his expertise or knowledge that was directly relevant to the central issue in his trial, namely his state of mind and, specifically, his intention to cultivate more than 25 kilograms of that drug.
71 In Ivanoff, the issue that had to be resolved was whether the accused was aware that the number of plants that he was growing in his house was likely to have exceeded the commercial quantity. The fact that, some years earlier, he had been a substantial dealer in cannabis, and had been convicted of trafficking in that drug, bore directly upon his state of mind at the time he grew the cannabis that gave rise to the charge of which he was convicted.
72 In dealing with an application for leave to appeal against conviction, Weinberg JA held that the trial judge had correctly permitted the evidence of the accused's earlier involvement in trafficking cannabis to be led. His Honour said:
Ordinarily, evidence of the previous misconduct of an accused is regarded as inadmissible. That is so whether such evidence takes the form of the commission of an unrelated offence, or whether it involves proof of an actual conviction for such an offence. As a matter of policy, the law regards such evidence as dangerous, and highly prejudicial.
There are, of course, exceptions to this exclusionary principle. The most obvious example, at common law, was what was termed 'similar fact evidence'. A similar exception, under current law, is to be found in the provisions of the Evidence Act dealing with what is now known as tendency and coincidence evidence. Such evidence must satisfy more than the ordinary test of relevance. It must have 'significant probative value', and its probative value must 'substantially outweigh' any prejudicial effect it may have on the accused.
If evidence is relevant for a use which does not fall within either of the definitions of 'tendency evidence' or 'coincidence evidence', and is not caught by any other exclusionary rule, it may be admitted, subject to the power conferred upon a trial judge to exclude evidence under s 137. That section requires a Court to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
Of course, not every case in which the Crown seeks to lead evidence of discreditable past acts on the part of the accused should be seen through the prism of tendency or coincidence. For example, it has long been recognised that 'relationship evidence', outside the bounds of tendency or coincidence, may be led if relevant, subject only to the possible exercise of judicial discretion.
In the same way, evidence of previous misconduct may be relevant otherwise than via tendency or coincidence reasoning, and may therefore be admissible, provided that its probative value is greater than any likely prejudicial consequences. Self-evidently, if the evidence is admitted on a non-tendency or non-coincidence basis, it may not be used for the purpose of proving tendency or coincidence.
Some examples of non-tendency and non-coincidence use will suffice:
It is precisely this last category of non-tendency and non-coincidence reasoning that the judge in the present case adopted. His Honour took the view that the applicant's previous experience in the cultivation of cannabis bore directly upon his state of mind, as regards the size of the crop he was growing.
In my view, his Honour's analysis of the basis upon which the evidence of the applicant's previous conviction was admissible was correct. The evidence was relevant, neither as tendency nor coincidence, but because it went directly to the central issue in the trial, namely, the applicant's state of mind.
The only question that remains to be considered is whether the judge erred in refusing to exclude this evidence pursuant to s 137. Plainly, his Honour gave careful consideration to this matter, and had regard to the competing factors when he undertook the requisite balancing process. He recognised that evidence of the applicant's previous involvement with cultivating cannabis would be prejudicial, but he also recognised that it was highly probative as regards the sole element in dispute in this trial.[9]
73 There are a number of examples of cases where evidence of prior acts of misconduct on the part of an accused was admitted,[10] not on the basis of tendency or coincidence (or in earlier days, as similar fact evidence) but rather, because such evidence was directly relevant to, for example, the accused's knowledge and state of mind.
74 One such case to which reference was made in Ivanoff was R v Leask.[11] There, Barr J (which whom McInerney J agreed) dismissed an appeal against conviction in circumstances where the appellant had been charged with multiple counts of what might be termed 'smurfing' in breach of s 31(1) of the Cash Transactions Reports Act 1988 (Cth). The evidence was that over the period of the alleged offending, the appellant made a series of deposits into various bank accounts (in total, just over 100 transactions, almost all involving deposits of just under $10,000[12]). The prosecution sought unsuccessfully to rely upon ss 97 and 98 of the Evidence Act 1995 (NSW), claiming that this evidence was cross-admissible, either as tendency evidence, or as coincidence evidence.
75 It was held that this evidence was admissible, not as tendency or coincidence evidence, but because it went directly to the appellant's state of mind. It tended to establish that he was well aware, at all relevant times, of the importance of keeping deposits of cash below the amount of $10,000, a critical matter so far as the elements of the offence were concerned.
76 In O'Leary v The King,[13] the High Court provided another example of evidence of prior acts of misconduct being admissible, not as going to tendency or coincidence, but as relevant otherwise. In that case, the employees of a timber camp went on a drunken orgy lasting several hours. One was found near death the following morning, having been struck eight or nine times to the head with a bottle. In addition, kerosene had been poured on him and his clothes ignited. Several circumstances connected the appellant with the crime. It was held that evidence of a series of violent assaults perpetrated by the appellant on other employees during the orgy, including the deceased, all of which involved brutal blows to the head, was admissible.
77 The evidence was admissible not as similar fact evidence, but because the transaction of which the alleged murder formed an integral part could not be truly understood and isolated from it. The appellant's generally violent and hostile conduct might well serve to explain his mind and attitude, and was admissible not as showing a particular disposition, but rather as ordinary circumstantial evidence.
78 The textbooks are replete with examples of other crimes being admissible, though not through tendency or coincidence reasoning. For instance, in R v Evans,[14] it was held that the prosecution could lead evidence of the commission of other unrelated crimes in order to confirm parts of a confession to the actual crime charged.
79 Similarly, evidence of the commission of other uncharged offences can be led if it tends to prove sufficiently clearly the commission of the actual offence charged, even if it does not meet the requirements of tendency or coincidence.[15] Such evidence will, of course, be subject to possible exclusion under s 137 of the Evidence Act 2008.
80 This was a powerful and perhaps even overwhelmingly strong Crown case. That would be so irrespective of whether the evidence of importation 1 had been placed before the jury. It is difficult to understand how if, as the applicant claimed, he had nothing to do with arranging for the importation of the package that was delivered at Shannon Street on 2 August 2012, the consignor in China would have obtained that address as the place to which the package should be delivered.
81 Certainly, a casual worker whom the applicant barely knew, and who could not realistically have known that he would be engaged in work at that address on that very day, could hardly have orchestrated the delivery of that package.
82 So far as we can tell, there was no sign at trial of any Xue Kai, a man who was said to work for cash, and about whom almost nothing was known. No evidence was led to support the applicant's account of having been telephoned by that man on 1 August 2012 to make arrangements for collection of the package the following day.
83 When one adds to this powerful circumstantial case the evidence concerning the applicant's links to importation 1, and the peculiar similarities associated with his involvement on behalf of a different but still barely known casual employee in attempting to collect a similar package sent from China, the case against the applicant becomes almost unanswerable.
84 Had his Honour not taken what may be seen to have been a benevolent view of importations 2 and 3, a respectable case could have been made for admitting that evidence as well, as coincidence evidence.
85 It was the applicant who introduced his connection with importation 1 into his discussion with police during the interview on 2 August 2012. He may have done so because he knew that there would be a record of his having been previously questioned by police about importation 1, and was seeking pre-emptively to take the sting out of that earlier involvement.
86 In any event, both August 2012 records of interview were replete with inherent improbabilities and each contained a number of glaring lies.
87 The evidence of importation 1 was, as the trial judge correctly recognised, highly relevant. It was potent evidence of guilt. Self-evidently, that did not make it unfairly prejudicial.[16]
88 When Ashley JA referred this matter to this Court, on the question of leave, he did so in order that further guidance might be provided as to the limits of the Ivanoff principle.
89 We accept that Ivanoff was not on all fours with this case. There is an important difference between an established act of prior misconduct, as in Ivanoff, and something short of that, but potentially raising suspicion.
90 In a case such as the present, where one aspect of the matter turns upon whether the applicant's state of mind was one of recklessness, the fact that he was well and truly put on notice of the risk that he was being used as a conduit for a drug importation renders the evidence of importation 1 not merely relevant, but central to the alternative case upon which the prosecution relied.
91 For these reasons, and without saying any more about the limits of Ivanoff (other than to note that there was no challenge to the correctness of that decision before this Court), we would refuse leave to appeal.
[1] [2015] VSCA 116 ('Ivanoff').
[2] The precise quantity of pseudoephedrine was 2424 grams.
[3] This is the same address as the point of embarkation of the package that contained the pseudoephedrine, the subject of the charge of importation in this case.
[4] Once again, this is the same embarkation point as importation 1 and the charge of importation the subject of this case.
[5] Transcript of Trial, DPP v Lin (County Court of Victoria, CR-14-01379, Judge Coish, 16-26 May 2018), 62-8.
[8] We interpolate to say that the prosecution also relied upon the applicant's answers to police in his various records of interview as lies, indicating what used to be called consciousness of guilt, but is now described as incriminating conduct. His Honour gave the jury a strong direction regarding the use of this evidence in that way in accordance with the requirements of the Jury Directions Act 2015.
[9] Ivanoff [2015] VSCA 116 [14]-[22] (citations omitted).
[10] The 'prior acts of misconduct' need not be criminal to fall within the ambit of tendency or coincidence reasoning. See eg, R v Ball [1911] AC 47, where evidence that a brother and sister had cohabitated prior to the criminalisation of incest by statute would still, if admitted, pose the danger of unfair prejudice, but was, in the circumstances, rightly admitted. See also BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, per Gaudron J who, in the context of the evidentiary issues that were relevant, said that the conduct in question should be viewed as 'no different from conduct which offends against the criminal law'.
[12] That being the figure that would trigger reporting obligations on the part of the relevant financial institution.
[15] Where an accused is said to have committed several burglaries in one night, stealing an item from one of the premises, and leaving it behind at another, the entire body of evidence is admissible. See R v Wylie [1804] EngR 277; (1804) 127 ER 393; R v O'Meally (No 2) [1953] VicLawRp 7; [1953] VLR 30.
[16] As to the concept of 'unfair prejudice', see Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 [93] (McHugh J) and Festa v The Queen (2001) 208 CLR 593 [22] (Gleeson CJ).
Lin
The Queen [2018] VSCA 100
(1946) 73 CLR 566
(1997) 191 CLR 275
(1999) 196 CLR 297
(2001) 208 CLR 593