Nessim v The Queen [2016] VSCA 46

1 Following a trial before a jury in the County Court, the applicant was found guilty of one charge of attempting to import a marketable quantity of a Border Controlled Precursor (pseudoephedrine).[1]

2 The applicant now seeks leave to appeal against that conviction.

3 The applicant was initially charged jointly with a co-offender, Riad Farah, but by the time of the trial at which he was convicted Farah had pleaded guilty to the same offence.

4 The offence charged arose out of the postal delivery of a quantity of pseudoephedrine concealed within a packet labelled 'Growth Formula dietary supplements for underweight people'.

5 Both the applicant and Farah were present at a unit in St Kilda when the package containing the drug, carried through the express mail service ('EMS'), was delivered by a Customs Officer dressed as a delivery driver for EMS as a 'controlled drop'.

6 The applicant accepted the package stating that he was the addressee, Jason Phillips, before signing for it. He tipped the delivery driver $20.

7 He then took the package into the home unit and was present with Farah when the package was opened. Customs officers entered the premises shortly afterwards and arrested both men.

8 Farah had been requested to perform renovation works at the unit and had had access to it for some months.

9 When interviewed on the day of his arrest, the applicant asserted that he was present at the premises at Farah's request to give a quote on sanding the floor. He admitted receiving the package and said he signed for the package on behalf of Farah after meeting the delivery man when he went out to get some cigarettes from his car. He opened the parcel with Farah and found powder within it but had no idea what the powder was. He had no idea who was named as the addressee.

10 The prosecution led evidence of the following matters:

(a) Enquiries were made from the applicant's phone concerning the delivery of the package after a delivery card was first left at the St Kilda premises. The delivery card said 'Signature required on delivery. Call [phone number]'. Two phone calls were made by a female from the applicant's phone arranging for the parcel to be delivered between 11:30 and 12:30 on 22 April 2013. A third phone call was made on the morning of that day postponing the delivery to between 12:00 and 12:30 pm. Between the phone from which this third call was made and the applicant's phone, four calls and one attempted call occurred between 11:13 am and 11:19 am. The call tower locations utilised for these calls and later calls between 11:19 am and 11:46 am show that the applicant's phone travelled from Reservoir to St Kilda during this period.

(b) Evidence of the circumstances of the delivery including in particular the fact that the applicant first identified himself as Jason Phillips and then signed for the package as Jason Phillips before tipping the delivery man. A covert recording was played to the jury in which the applicant was asked 'are you Jason Phillips' and replied 'yes I am' before purporting to sign for the parcel as Jason Phillips.

(c) The fact that the applicant was found with the open parcel immediately after the delivery and that the applicant admitted being present when it was opened.

(d) The applicant's record of interview, including the terms of his denials.

11 In addition to these matters, the prosecution adduced evidence of a prior course of conduct by Farah which involved the attempted importation of pseudoephedrine from Egypt in four other packages intended to be delivered by EMS to an address in Hampton East. Each of these packages was intercepted by Customs. The mode of importation involved a series of detailed similarities to the importation in respect of which the applicant and Farah were charged.

12 On 5 February 2013, Farah also sent two text messages to the applicant's phone. The first stated the Hampton East address to which those four packages were addressed and the second gave the EMS number of the third package.

13 The prosecution led this evidence ('the prior course of conduct evidence') to rebut the defence proposition that the applicant was present at the St Kilda address and took delivery of the package at that address simply by innocent coincidence.

14 The applicant's proposed ground of appeal is that:

The learned trial judge erred in admitting the evidence of four previous parcels found to contain pseudoephedrine.

15 For reasons which it is unnecessary elaborate, the applicant underwent four attempted trials prior to his conviction in a fifth trial.

16 At the outset of the first trial, objection was taken to the prior course of conduct evidence. It was submitted that the evidence did not meet the requirements governing the admission of coincidence evidence. The trial judge held that the evidence had substantial probative value[2] and that the probative weight of the evidence substantially outweighed any prejudicial effect it might have.[3]

17 Following that ruling it became clear that the prosecution was unable to prove that the applicant had actually received either of the two text messages sent on 5 February 2013, although it could prove that they were sent to him. The objection to the admission of the prior course of conduct evidence was re-agitated. The matter was argued on the basis that the evidence was founded in coincidence reasoning (and thus must meet the statutory requirements for the admissibility of such evidence) but crystallised in 'relationship evidence' which bore on the probable state of mind of the applicant at the time of the alleged offending.

(1) The offence [with] which the accused is charged, involves the joint commission of the offence with Farah and others.

(2) The evidence establishes that Farah was in control of the premises at St Kilda.

(3) The Crown seek to use coincidence reasoning to prove the intention of Farah in respect of the postal package, that is that he did not receive the postal package in innocent circumstances, given he had control of the property to which the postal package was addressed.

(4) None of the above matters involved proof of the existence or otherwise of texts being received by the accused.

(5) It was an irresistible inference that once the evidence regarding Packages 1 to 4 and the postal package is considered, that Farah knew of the contents of the postal package and the receipt of it by him was not in innocent circumstances.

(6) The question then arises as what is to the likelihood that the accused had knowledge of the contents of the postal package, given the relationship between the accused and Farah.

(7) It was in this sense that the text messages of February were relevant. The Crown would invite the jury to consider the evidence regarding this, in addition to all the other evidence that directly related to the accused, to draw the inference the accused would have known from Farah the contents of the postal package and agreed with Farah to be involved in the importation of the postal package.

19 The defence submitted that the evidence was prejudicial in the sense that it was not related to acts by the applicant and that, because it could not be shown that the text messages were received, evidence of them should not be admissible against the applicant. The defence further submitted that the evidence was unfairly prejudicial. The trial judge relevantly ruled first that the coincidence evidence in respect of the attempted importation of sequential packages was relevant as demonstrating the probable purpose for which Farah was present at the St Kilda premises and second, the context in which he obtained the fifth package:

The Crown seek to use coincidence reasoning to prove the intent of Farah, in relation to the postal package. This is in the context of the joint commission of the offence, in circumstances where evidence established Farah was in control of the St Kilda premises, but where there is no evidence before the jury as to Farah's criminal purpose, that is, evidence to rebut any suggestion that he, like the accused, was at the unit for innocent purposes.

Clearly this evidence has significant probative value. The similarities in the packages with the postal package (see the coincidence ruling). But also the common features of the registration details of the unknown person, one of the phone that sent the text to Farah regarding Package 3, and those from an unknown person 2, in phone communication with Farah around the time of the delivery of the postal package, all led to the irresistible inference that Farah was criminally involved and had the relevant knowledge regarding the postal package.

It is not suggested that because [Farah] had that relevant intention, that [the accused] also had that intention on this evidence alone, rather it is a piece of evidence to establish Farah's intention and then to consider A's involvement in respect of the postal package and the circumstances when that was received.

In an offence which it is alleged is a joint commission with Farah, any evidence that Farah has knowledge of the contents of the postal package must, in the circumstance of this case, logically bear on the likelihood that the accused has that knowledge, because Farah has had the opportunity to tell him.

It was further argued by the Crown, if this was a case where there was no text, it would be totally artificial for the jury to hear evidence that Farah had control of the premises for legitimate purposes of renovating the unit, that is, an innocent reason and not to be aware that Farah had been sent a text providing information about an address and EMS number that related to another remarkably similar importation.

An importation that is so similar that it irresistibly invites a reasoning process that it is improbable the events around Packages 1 to 4, and the delivery at [the St Kilda premises], occurred coincidentally (see the coincidence ruling).

The coincidence reasoning plays part therefore in establishing the person who is with the accused on receipt of the postal package, has relevant knowledge.

20 Her Honour then addressed the argument with respect to relationship evidence and relevantly concluded:

In accordance with the principles in Harriman,[4] it is permissible to consider this kind of evidence in respect of the relationship between the accused and Farah, that is, the connection between them and the information relayed in relation to the text, and the inferences that can arise as a consequence.

Does the message sent on 5 February from Farah's phone to the accused's phone, bear on the likelihood that Farah would impart his knowledge of the contents of the postal parcel to the accused?

The contents of the text message go to the relationship that exists between the accused and Farah. As set out in the coincidence ruling, that evidence provides information as the address of Packages 1 and 4 and the ESF number of Package 3. This relates to an illegal importation of drugs with similarities, as set out in the coincidence ruling.

The text then becomes a piece of evidence that can be used by the jury in determining the relationship between the accused and Farah. It does not relate directly to the postal package, but is able to be used to show the kind of relationship that existed when the circumstances regarding the postal package occurred.

Details of illegal importations are usually kept secret because of the risks that are involved. Specific transference of information about an illegal importation is likely to be to someone who was involved in that crime.

The existence of two texts, as opposed to one text, is also important in the sense that they both contain information relating to Packages 1 to 4, and both were sent to the accused from Farah.

The fact the Crown cannot prove the text was received, does not take away from the inference that can be drawn as to the relationship between the accused and Farah.

Defence counsel argued that there could be an innocent explanation, that is, that an attempt to get the accused to pick up a package in innocent circumstances. But that does not mean that the contents of the text are inadmissible. The Crown rely on that, with other conduct of the accused regarding the postal package, to draw the inference that the accused had the knowledge and the likelihood that that knowledge was imparted by Farah, that is, the text is a piece of evidence to show the relationship and that taken with all the other involvement with the accused and the postal package, the jury can infer the accused's knowledge in respect of the contents of the postal package.[5]

21 The reasoning in Harriman to which her Honour referred was encapsulated in the following passage in the judgment of Dawson J:[6]

When a person is charged with a criminal offence, evidence is ordinarily inadmissible that he has on other occasions been guilty of behaviour indicating a criminal disposition. This is not because the evidence is irrelevant. On the contrary, it is excluded because a jury is likely to regard it as proving too much and is for that reason likely to proceed upon prejudice rather than proof. On the other hand, such evidence may in a particular case have a sufficiently high probative value to justify its admission notwithstanding its prejudicial effect. When it is admissible in this way, it is generally called similar fact evidence but that description can be misleading. Whilst it is often the case that the evidence is admissible because it is so strikingly similar to the behaviour alleged to constitute the offence as to point inevitably to the guilt of the accused, that is not the only basis upon which evidence indicating a criminal propensity is admissible. The evidence may otherwise have strong probative force justifying its admission. This case is an illustration. Evidence that the applicant had a previous relationship with the witness Martin involving dealings in drugs was clearly evidence of a disposition or propensity upon his part, indeed, on the part of both of them, to engage in dealings of that kind together with one another such as to make it highly improbable that their relationship in this case was of an innocent character. It was not so much the similarity of the previous dealings which was important as the nature of the association to which those dealings pointed.

22 Her Honour went on to record that clear directions would be required to be given to the jury regarding the use of the evidence concerning the texts as relationship evidence.

23 The applicant submits first that, because the prosecution could not prove that the applicant had any illegal involvement with the previous packages, the evidence could have little or no probative value in respect of the applicant's state of mind when the fifth package was received.

24 Secondly, it is submitted that, in circumstances where the prosecution could not show the applicant received the text messages, the evidence was incapable of demonstrating a relevant relationship between the applicant and Farah.

25 Thirdly, it is submitted that the basis of the trial judge's ruling concerning the relationship evidence was overtaken by the fact that Farah pleaded guilty and the evidence of that fact was led before the jury at trial by the applicant.

26 Fourthly, it is submitted that the trial judge's directions to the jury were not and could not be adequate to prevent prejudicial misuse of the relationship evidence.

27 Fifthly, it is submitted that, for the above reasons, the evidence in issue did not meet the requirements of ss 98 and 101 of the Evidence Act 2008.

28 In the course of oral argument, the applicant's counsel referred to some differences between the arrangements concerning the four prior packages and the delivery forming the basis of the applicant's alleged offending. In particular, the previous packages were addressed to a different address and were not packaged completely identically to the fifth.

29 As contended by the coincidence notice served by the prosecution, the four prior packages each had the following similarities to the package of which the applicant took delivery at the St Kilda address:

(c) containing boxes labelled so as to suggest they contained growth formula/dietary supplements;

(e) the powder was confirmed by analysis to contain pseudoephedrine;

(f) the powder ranged in purity of pseudoephedrine from approximately 31 to 33 per cent and that contained in the parcel delivered to the St Kilda address had a purity of approximately 34 per cent.

30 Photographs of the packages were in evidence before the jury.

31 In our view, the evidence disclosed a series of attempted importations from Egypt by Farah using the same essential modus operandi and a strikingly similar method of concealing pseudoephedrine, despite the fact that the fifth set of packets were branded differently from the previous packets.

32 The real question, which arose at trial and which now arises on appeal, is whether the link between this prior course of conduct identified by coincidence evidence formed a satisfactory basis, when taken together with evidence of the text messages, for a conclusion as to the relationship between the applicant and Farah at the time of the alleged offending. In turn, the applicant's arguments are founded in large part upon questions related to the adequacy of the alleged nexus between the prior course of conduct and the relationship between the applicant and Farah at the time of the alleged offending.

33 It was that nexus which supported the conclusion that the coincidence evidence was of significant probative value in respect of the case against the applicant[7] and that its probative value substantially outweighed any prejudicial effect upon the applicant.[8]

Lack of proof of prior criminal conduct by the applicant

34 It is true that the evidence did not establish positive participation by the applicant in any of the four previous attempted importations. This did not, however, prevent relationship reasoning. As her Honour held in her second ruling, the text evidence was evidence which, when taken together with the other evidence of the applicant's involvement with the receipt of the fifth package, founded an inference as to the applicant's relationship with Farah and the applicant's knowledge of the contents of the fifth package. More specifically, the evidence tended to refute the possibility that the applicant was present coincidentally and participated innocently in the receipt of the package. It did so by establishing a prior relationship in which, in the course of ongoing attempted importations, Farah advised the applicant of the address and number of a proposed EMS delivery. It was open to the jury to conclude that Farah would be highly unlikely to do this unless the applicant were aware of the proposed importation.

35 In turn, this was evidence of a relationship within which the applicant was aware of Farah's ongoing criminal conduct.

36 The lack of proof of receipt of the text messages did not deprive the evidence of probative force as to the nature of the relationship between Farah and the applicant. The sending of the two texts was sufficient to found an inference of mutual awareness of the proposed importation.

37 Likewise, the fact that the texts related to one delivery only did not render the evidence of other attempted importations irrelevant. That evidence demonstrated a consistent course of conduct by Farah relevant to the alleged offending. The evidence as to the relationship between the applicant and Farah fell to be evaluated in this context.

38 The probative force of the evidence in respect of the relationship between the applicant and Farah was not overtaken by Farah's plea of guilty. That plea related to the fifth delivery. The evidence of the prior course of attempted importations and the relationship between Farah and the applicant, evidenced by the text messages sent in the course of that conduct, was logically distinct from the more confined question of Farah's guilt with respect to the joint offence charged as a result of receipt of the fifth package.

39 Moreover, her Honour's second ruling makes clear that she understood the critical issues in respect of this further evidence were its relevance, probative force and relative weight if the coincidence evidence was understood to crystallise in relationship evidence arising in the context of Farah's proven course of conduct.

40 It is true that the evidence as to the prior course of conduct by Farah prejudicially linked the applicant with prior criminal conduct by Farah.

41 Nevertheless, the trial judge was correct to conclude that the probative weight of the evidence was substantially greater than any prejudicial effect it might have when it was viewed in the context of the evidence as a whole. In order to reach this conclusion, it was necessary to identify precisely how the evidence could and could not be used.

42 A concomitant of her Honour's conclusions concerning potential prejudicial effect was the necessity for her Honour to carefully direct the jury not only as to how they might use the evidence but also as to how they must not use the evidence. This she did.

43 Her Honour first explained to the jury how the evidence was put:

This evidence is led to show the unlikelihood that Riad Farah was innocently involved when police arrived at the St Kilda unit. That is, the unlikelihood of coincidence of him - Riad Farah - being at the unit for a purpose other than a criminal purpose. It is important you understand the prosecution does not allege the accused was criminally involved in those importations. You must not draw any inference adverse to the accused regarding Riad Farah's involvement in those other packages.

The prosecution does, however, argue that this evidence relating to the other packages, but more particularly the text messages sent to the accused from Riad Farah with information regarding those packages, that is, the address and the EMS number, is relevant to the relationship that existed between the accused and Riad Farah at the time of the commission of this offence.

There is no evidence as to whether the accused received those texts. Members of the jury, the prosecution has led evidence that Riad Farah and the accused were jointly liable for the offence before you, that they committed the offence together. The prosecution argues the contents of the text messages go to the relationship that existed between the accused and Riad Farah. It does not relate directly to the circumstance of the package being delivered to St Kilda, but it is a piece of evidence that can be used to show the kind of relationship that existed between them when that delivery to St Kilda occurred.

The Crown says that it does not matter that that there is no evidence that the texts were not actually received by the accused, because the fact that this information was sent by Riad Farah to the accused, even if he did not receive it, supports the argument that Riad Farah in February 2013, was willing to impart such information to the accused, therefore it is unlikely that when they were together in April, that the accused was not aware with Riad Farah, of the contents of the parcel.

The Crown also relies on material in Exhibit B, the Statement of Admissions, document 2, the telephone evidence, paragraph 6 and 7, the similarities of the details regarding the source of that information to Riad Farah, that is the 604 number and the text sent to Riad Farah and the details of the 641 number and communications with Riad Farah at around the time of the delivery to St Kilda. This, together with communications between Riad Farah and the accused, it says goes then, also, to the relationship between them.

In response, the defence says the Crown are making the accused guilty by association with Riad Farah and there is no evidence that the accused was involved in any criminal activities with Riad Farah. It could have been a mistake that Riad Farah sent the text to the accused, and that phone records cannot be relied upon in any event.

44 No exception was taken to this direction. Trial counsel implicitly accepted that it fairly reflected the way the parties had put their cases.

45 Her Honour went on to direct the jury as to how they might use the evidence:

I must now direct you about how you can use this evidence, and then I will direct you on how you must not use the evidence. You can use this evidence in two ways: first, if accepted, it may place the alleged offence in a complete and realistic context and setting. That is, the explanation that Riad Farah was simply there to work on the unit was untrue. It provides complete and realistic context and setting for the presence of Riad Farah at the unit.

Secondly, by demonstrating the nature of the relationship between the accused and Riad Farah, this evidence, if you accept it, shows the relationship argued by the prosecution and that may help you to determine whether Riad Farah and the accused were jointly involved, or both knew, or held a belief, as to the contents of that package.

That is, that by establishing that Riad Farah had sent to the accused details relating to the other importations, this was the kind of information you would only impart to someone who was criminally involved with you, thus making it less likely that accused's association with Riad Farah on this occasion was innocent.

It is important you only use this evidence for those two purposes and only if you accept it is true and helps to explain the presence of the accused for a criminal purpose at the St Kilda flat. If you do not believe the evidence or you do not think that it provides you any assistance, then you should disregard it. That is, if you do not accept the Crown argument regarding the sending of the text to the accused relevant to the other importations, then you should just disregard it.

46 Once again, there was no exception taken to this direction. It fully and fairly encapsulated the Harriman[9] reasoning relevant to this case.

47 Next, her Honour gave careful and full directions as to how the jury must not use the evidence:

I will now direct you on how you must not use the evidence. You must not use the evidence to reason that, if Riad Farah sent the text regarding the other importations, that the accused must have been involved in the events charged or the package at St Kilda. This evidence and the relationship the prosecution says it reveals, is only part of the evidence. An association with another criminal in the past alone cannot prove guilt.

Similarly, you must not use the evidence to reason that the accused is the kind of person who commits offences of this nature and so is more likely to have committed the offence charged. You must make your decision on the evidence, and not on any views about what type of person the accused is. You must not reason the accused is the kind of person who associates with those who commit offences of this nature, and is therefore more likely to have committed this offence.

You also must not substitute the evidence of the text sent by Riad Farah to the accused, for the evidence of the offence charged. You can only convict the accused of the offence charged, if you are satisfied beyond reasonable doubt, of the offence. It would be wrong to say, 'I'm satisfied that Riad Farah sent the text in relation to the other importations to the accused, and so I'll convict him of the attempt to import this package since it relates to, or is the same kind of conduct.' Proof of these acts is not the same as proof of the offence charged, but this evidence might help you to decide whether the prosecution has proven the offence charged.

Finally, you must not allow the evidence of sending the text by Riad Farah to cause you to close your mind against the accused or pay less attention to other evidence. Evidence of the relationship between Riad Farah and the accused as argued by the Crown in respect of these texts, is only part of the evidence the prosecution relies upon and when making your decision, as I said to you a number of times, you must consider all of the evidence.

Ultimately, the questions for you in dealing with this evidence are, does it demonstrate the nature of the relationship between the accused and Riad Farah, and does it assist you to understand the context of the alleged offence.

48 This direction was impeccable. Not surprisingly, there was no exception to it. In our view, it was sufficient to ensure that the applicant was not unfairly prejudiced by the prior course of conduct evidence.

(a) the relationship evidence was founded in coincidence evidence as to the course of prior conduct by Farah;

(b) the text evidence fell to be understood in the context of the evidence as to the course of conduct undertaken by Farah and, in turn, fell to be evaluated in the context of the circumstantial evidence as a whole;

(c) viewed in this context, the text evidence constituted relationship evidence founded upon coincidence evidence;

(d) understood in this way, the coincidence evidence had significant probative value as required by s 98 of the Evidence Act 2008;

(e) the probative weight of the coincidence evidence in issue substantially outweighed any potential prejudicial effect upon the applicant; and

(f) the trial judge gave careful and comprehensive directions to the jury sufficient to ensure that potentially prejudicial modes of reasoning were avoided.

50 As the matter was arguable, we would grant the application for leave to appeal, but dismiss the appeal.

[1] Criminal Code (Cth) ss 11.1(1) and 307.12(1).

[2] Evidence Act 2008 s 98.

[3] Evidence Act 2008 s 101.

[4] Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 ('Harriman').

[6] Harriman [1989] HCA 50; (1989) 167 CLR 590, 597.

[7] Evidence Act 2008 s 98.

[8] Evidence Act 2008 s 101.

[9] Harriman [1989] HCA 50; (1989) 167 CLR 590.