R v Chase

Court of Criminal Appeal (NSW)|2018-03-09|Before: Basten JA, Johnson J, Campbell J

Solicitors: Solicitor for Public Prosecutions (Appellant) O'Brien Hudson Solicitors (Respondent) File Number(s): 2015/345579 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 28 November 2017 Before: Craigie SC DCJ File Number(s): 2015/345579

Judgment

BASTEN JA: The Director of Public Prosecutions has appealed, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), against an interlocutory judgment in the District Court rejecting the proposed tender by the prosecutor of evidence described as tendency or coincidence evidence. The Director's right of appeal depends on a finding that the ruling "eliminates or substantially weakens the prosecution's case". [1] There is no suggestion that the rejection of the evidence "eliminates" the prosecution case, that is, makes it untenable.
Briefly, the respondent faces two charges of possessing drugs for supply, in contravention of the Drug Misuse and Trafficking Act 1985 (NSW), s 25. The only plausible defence appears to be that the drugs (found under or near the passenger seat of the taxi in which he was travelling when arrested) were not his. To counter this possible defence, the prosecution sought to tender evidence of an earlier event when, being in company with another man, the respondent was approached by police. He ran, but was apprehended carrying a bag containing drugs. He said the bag belonged to the other man and he had run because he knew there was a warrant out for his arrest, not because he knew he was carrying drugs. He was charged with, and later convicted of, supplying the drugs found in the bag.

Jurisdiction of this Court

The respondent submitted that the appeal should be dismissed because the rejection of the evidence did not substantially weaken the prosecution case, for the purpose of s 5F(3A). In seeking to uphold the ruling of the primary judge, the respondent argued, first, that the tendency evidence "did not have significant probative value" and, secondly, that, on the critical issue of possession, the case against the respondent was in any event "quite strong". [3] Therefore the rejection of the evidence in question did not substantially weaken the prosecution case. As the respondent put it in his written submissions, he did "not concede that the Crown has established the threshold requirement". [4]
The parties were in agreement that the relevant approach to the jurisdictional question was that identified by Spigelman CJ in R v Shamouil, [5] where the Chief Justice said: [6] "This Court should determine whether or not a ruling on the admissibility of evidence 'substantially weakens' the Crown case by asking whether or not that would be the effect, on the assumption that the jury accepted the evidence, as long as the evidence was fit to be left to the jury. It is not desirable for this Court to undertake an investigation into the weight of the evidence based on credibility or reliability considerations."
As explained in Shamouil, the exercise required in applying s 5F(3A) is similar to that required in ruling on the admissibility of evidence under s 101(2) or s 137. [7] It is now accepted that an assessment of weight based on credibility and reliability (subject to the condition that the evidence be fit to be left to the jury) is not merely "not desirable", it is an assessment the court does not undertake. [8] None of this was controversial, for reasons which will appear.
More controversial was the proposition in Shamouil that, "[e]ven a case which is otherwise likely, even very likely, to succeed, may still be 'substantially weakened', if evidence of cogency or force is withheld." [9] This passage has been taken as a legal principle that, so long as the evidence has significant probative value, its rejection will substantially weaken the prosecution case. The Crown Advocate referred this Court to statements in R v SJRC [10] and to R v Matonwal and Amood, [11] where Bathurst CJ said that, "as the evidence has significant probative value, it follows that its exclusion substantially weakens the prosecution case for the purposes of s 5F(3A) of the Criminal Appeal Act."
The submission ventures perilously close to the fallacy of taking a statement from a judgment out of its factual context and presenting it as a statement of legal principle. The statutory test is whether the rejection of the evidence "eliminates or substantially weakens the prosecution's case." It would be wrong to substitute a test which is satisfied merely where the rejected evidence has significant probative value. Often, the removal of evidence having significant probative value will substantially weaken the prosecution case; but not necessarily. In fact some tendency evidence may only have significant probative value when assessed in the context of other evidence. [12] In short, the tests are neither equivalent nor co-extensive.
Of course, if the evidence could not be described as having significant probative value, it is quite unlikely that its rejection could substantially weaken the prosecution case. An assessment of its probative value is a necessary, but not sufficient, condition of satisfaction of the test in s 5F(3A).
For reasons which will be explained below, the prosecution case is properly described as reasonably strong. Nevertheless, it requires that inferences be drawn from the primary evidence as to what happened at the time of the respondent's arrest on the current charges; the Court, dealing with an interlocutory application, cannot be sure how the evidence will ultimately be presented at trial and how the jury will assess it. I agree with the finding of the primary judge that the proffered evidence had significant probative value; I would also conclude that, so far as it is possible to judge the issues which will be raised by the defence at trial, that evidence is likely to form an important part of the prosecution case and its rejection will, therefore, substantially weaken that case. The appeal is therefore properly brought.

Nature of appeal

The Director accepted that "the principles in House v The King [13] apply to the review of the ruling." [14] The Director referred to a passage in the judgment in this Court in Mol v R, [15] to the effect that "while s 101(2) requires the court to make an evaluative judgement rather than exercise a discretion, in an appellate review of determinations made under this section, the principles in House v The King … governing appellate review of discretionary decisions apply: see generally Saoud v R [16] and DAO v The Queen [17] (although the question addressed in that case arose in the case of an interlocutory appeal to the Court)."
Some care should be taken in relying upon these authorities. Mol, albeit involving a challenge to the admissibility of evidence, was an appeal following conviction, where different considerations may arise as compared with an interlocutory appeal such as DAO, a point acknowledged in Mol. Further, Saoud, which also involved a challenge to convictions, did not determine the issue, counsel for the applicant having accepted, against interest, the restrictive approach set out in House v The King. [18] Although it was said that "[t]he correctness of that concession need not be doubted", it was also noted that the decision was not truly discretionary. [19] Saoud did not explore the nature of the appeal further.
Suffice it to say that abstract categorisation of the nature of the appeal is less helpful than a consideration of the specific challenge raised to the particular decision under review.

Nature of evidence

The respondent was charged with two offences of supplying a prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985 (NSW), s 25(1). One count related to a quantity of methylamphetamine, the other to a quantity of MDMA. The arrest took place when the respondent was travelling in the front passenger seat of a taxi at a location on the Central Coast. At the time he was carrying a black shoulder bag. On searching the bag, the police located digital scales, a large sum in cash and three mobile phones. A search of the taxi resulted in the discovery of a small blue bag under the front passenger seat containing several plastic bags of methylamphetamine. A further plastic bag contained MDMA. The police also searched the hotel room where the respondent had been staying and located what appeared to be "tick lists" with names and dollar amounts against them.
With respect to the respondent's knowledge of the contents of the blue bag, the prosecution intend to rely upon an exchange with police at the time of his arrest. When asked about the contents of the blue bag the respondent said, "You know what it is"; when asked "What is it?" the respondent replied, "I am only doing this because I have to". When the officer continued, asking "Doing what?", the respondent said, "This, I owe money", pointing to the blue bag. He was then asked whether he was running drugs to pay for an existing drug debt and was described in the officer's affidavit as putting his head between his legs and looking at the ground. The respondent then asked if he could make a phone call because, if he did not, "they're going to kill my family. These guys don't deal in small amounts and they'll have no problems killing someone".
The prosecution seek to call evidence that, some 10 months earlier in Sydney, the respondent had been approached by police and had attempted, unsuccessfully, to escape by running away. When he was arrested he had a dark-coloured bag containing a set of scales, a large sum in cash, a smaller blue bag containing plastic bags with a similar quantity of methylamphetamine to that the subject of the current charge, and a diary containing a form of "tick list" or ledger.
At the trial on the earlier charge, the respondent had denied knowledge of the drugs in the bag and had said that the bag belonged to an associate who had been present when they were approached by police. (The associate had died before the trial.) The respondent explained the reason for running on the basis that he was on parole at the time and believed there was a warrant out for his arrest, an explanation which sought to rebut an inference of consciousness of guilt in relation to the drugs in the bag.
The prosecution anticipates that the respondent will defend himself on the present charges on the basis that he had no knowledge of the bags containing drugs found near or under the front passenger seat in the taxi. The evidence of the earlier offending is sought to be relied upon as either tendency or coincidence evidence (or both) to rebut the plausibility of such a defence.
The prosecution gave notices indicating that it intended to rely upon this evidence, both as tendency and as coincidence evidence, pursuant to ss 97 and 98 of the Evidence Act, respectively. The definitions in the Evidence Act do not allow for a strict dichotomy between the two categories; rather, evidence of conduct on another occasion will often fall within both.
Arguably, nothing turns on the characterisation of the evidence. However, in Matonwal the accused were arrested in the course of a robbery, in possession of particular weapons and clothing. The prosecution sought to rely upon this evidence to demonstrate that the accused were responsible for other robberies captured on CCTV footage. The Court accepted that, with certain exceptions, the evidence was admissible as coincidence evidence in respect of the earlier offences the subject of the charges. The Court also dealt briefly with the application to admit the evidence as tendency evidence stating: [20] "However, I do not think that the evidence on each count is admissible under s 97 of the Act …. For the evidence in question to be used as tendency evidence, it would need to be established beyond reasonable doubt that the evidence in respect of each robbery … not only showed that there was a tendency for some persons to commit robberies with each other whilst, for example, wearing gloves and using particular sorts of weapons, but also that the persons committing the robberies were the respondents. Even if it was proved beyond reasonable doubt that one of the robberies was committed by the respondents, that in my view would not establish a tendency to commit other robberies or the tendencies set out in the amended tendency notice."
The distinction drawn by this reasoning between coincidence and tendency evidence was not relied upon by either party in the present case. Further, the test applied is not identified. The test of admissibility does not involve a requirement that the tendency evidence be accepted as demonstrating guilt beyond reasonable doubt; nor would a direction to the jury, assuming that the evidence had been admitted, necessarily be given in those terms. Of course, if the tendency evidence is the only evidence as to a necessary element in the prosecution case, it would need to be accepted as establishing that element beyond reasonable doubt. Usually, it would not be appropriate to isolate the tendency evidence from the other evidence in the case and direct the jury that, in order to rely upon that evidence, it must be satisfied as to the critical elements beyond reasonable doubt. Generally it will be necessary for the jury to weigh and consider the totality of the evidence. [21]

Findings

If the jury accepts evidence given by the police of their conversation with the respondent at the time of his arrest, and accepts the taxi driver's statement that he knew nothing about the bag and other items found in his taxi, a conviction would be likely on each count. However, this Court cannot know what issues of credibility or reliability might arise in the course of cross-examination.
The primary judge accepted that the evidence of the earlier events could have significant probative value, if the jury were to accept that the respondent knew what was in the bag he was carrying at the time of his arrest. The evidence of flight would provide a firm basis for such an inference, unless the respondent's explanation were to be accepted as plausible.
The primary judge accepted that the proffered evidence had "had significant probative value". [22] He then turned to the question posed by s 101(2) of the Evidence Act, namely whether the probative value of the evidence substantially outweighed any prejudicial effect it may have adverse to the respondent.
The earlier offending had been the subject of a trial before a judge sitting without a jury. That course had apparently been taken because the explanation the respondent had sought to give of the reason for running away involved disclosure that he was on parole and had therefore served a sentence of imprisonment for other matters. The respondent was convicted and lodged a notice of intention to appeal.
The prosecution did not seek to rely upon this conviction, but there was, inevitably, an element of prejudice in calling evidence as to his prior arrest. However, that was not the prejudice which gave rise to concern. Rather, the prejudice arose from the fact that there was an unresolved notice of intention to appeal in this Court. in the critical passage, the primary judge stated: [23] "I consider it highly prejudicial and highly undesirable that a trial proceed with the unavoidable implication of revisiting a trial and its verdict before a judge alone in this Court. It would seem to me also unavoidable that if tendency evidence is to be admitted, the accused would not only be forced to give evidence but forced to revisit his prior defence and no doubt pre-empt anything that might be said on his behalf on an appeal. These are all invidious and are particularly prejudicial aspects of what is proposed." The judge concluded that the prejudice substantially outweighed the significant probative value of the proposed tendency evidence. It was therefore excluded.

Issues on appeal

The passages set out above as to the nature of the prejudice involved three aspects. The first is the revisiting of the verdict of a judge alone. Because the verdict was adverse to the respondent, any revisiting must involve an attempt to persuade the Court to reach a different conclusion. That may be seen as a challenge to the finality of a verdict and conviction, but it does not constitute prejudice to the respondent. Nor, traditionally, was similar fact evidence rejected on that basis. Indeed, evidence of a similar offence of which the accused has been acquitted may be relied on to demonstrate a propensity to commit similar offences, even though conviction on the charges before the court may involve the conclusion that the earlier acquittal was mistaken. [24]
The second aspect is simply that if the evidence were admitted, the respondent would, to resist an inference of guilt of the earlier supply charge, be "forced" to give evidence again as to the reason for running from the police. In doing so he would, no doubt, reveal the fact that he had been in prison and released on parole. However, to characterise that circumstance as being "forced" to give evidence is not to demonstrate prejudice. It is a forensic choice. A sufficiently strong prosecution case may force an accused either to plead guilty or, if going to trial, to give evidence, in order to have a realistic chance of acquittal. That does not involve prejudice to the accused.
The third aspect is the possibility of pre-empting things that might be said on the outstanding appeal.
It is not easy to identify the element of prejudice involved in the combination of the further charges and the outstanding appeal with respect to the earlier charge. The appeal will be determined by reference to the judgment given, based on the defence run at the earlier trial. There is no necessary prejudice flowing from the defence being run again in relation to the earlier offending.
Possibly the more difficult situation is that which would arise if the appeal were successful and a retrial ordered. Supposing that the later charges had been disposed of before the retrial occurred, and the respondent was convicted of those charges, there would be no way of telling whether a jury verdict in effect involved disbelief of his account with respect to the first offending or whether that evidence had simply been put to one side. It is possible that a trial on the current offences would be before a judge alone, in which case there might be a judgment again rejecting his evidence as untruthful; it is, nevertheless, unclear how that could prejudice the retrial. Finally, if there were some basis upon which there might be prejudice to the retrial, that could be a ground for an application that he not be re-arraigned on the earlier charge.
The Director submitted that the Court should not entertain this point because the "prejudicial effect" referred to in s 101(2) was limited to the possible misuse of evidence in the trial in which it was proposed to be tendered, unfairly to the accused. Reliance was placed on statements in DAO v The Queen [25] and R v MM. [26] However, those authorities do not purport to limit relevant prejudice, but rather describe common forms of prejudice. A common prejudicial effect arises where the evidence is of a kind likely to inflame the jury, who may, consciously or subconsciously, determine the case adversely to the accused on the basis of extraneous factors. While that is certainly the most common circumstance, it is not to be assumed as a matter of principle that no other form of forensic unfairness can be taken into account under s 101(2). For example, there may be a concern that tendency evidence will distract the jury by placing overwhelming emphasis upon, and devoting much of the trial time to, matters other than the conduct charged. [27]
Section 101(2) speaks in general terms of "the prejudicial effect [the evidence] may have on the defendant." [28] It is not necessary to give that language a limited operation. The reasoning of the primary judge should not be rejected on the basis that he did not limit his consideration of prejudicial effect to the potential effect of the evidence on the jury, rather than on the interests of the respondent in a fair trial.
Nonetheless, each of the matters said to give rise to prejudice involves a high level of speculation as to future events, some of which are quite unlikely to occur. However, it is sufficient to find that the primary judge was in error, as a matter of principle, in taking into account factors, said to involve "powerful prejudice", which did not constitute relevant prejudice against the interests of the respondent. It follows that the judgment must be set aside.

Relief sought by prosecution

The Director submitted that the Court should vacate the ruling by the primary judge and, further, should make an order that the evidence is admissible as tendency and coincidence evidence. Such an order was available, it was submitted, pursuant to s 5F(5) of the Criminal Appeal Act. Reliance was placed upon the decision of this Court in R v SG. [29]
There is no doubt that an order of that kind may be available in an appropriate case. However, it may be doubted that this is an appropriate case. The focus in this Court has, quite properly, been on the specific elements of prejudice relied on by the primary judge. There was no challenge to the judge's assessment of the evidence as having substantial probative value. Indeed, the focus in the submissions before the primary judge appears to have been on the particular kind of prejudice discussed above. [30]
If, as seems probable, there are other considerations which have not been canvassed in this Court, the Court should not make an order precluding further consideration of the whole of the material.
Accordingly the Court should make the following orders: 1. Allow the appeal by the Director of Public Prosecutions against the judgment in the District Court given on 27 November 2017. 2. Set aside the order excluding the proposed tendency and coincidence evidence.
JOHNSON J: I agree with the reasons of Basten JA and the orders proposed by his Honour.
CAMPBELL J: I agree with Basten JA.

Endnotes

Criminal Appeal Act, s 5F(3A).
Judgment, 27 November 2017, p 3.
Outline submissions for respondent, filed 28 February 2018, par 13.
Outline submissions for respondent, par 21.
(2006) 66 NSWLR 228; [2006] NSWCCA 112 at [29], [39]-[40].
Shamouil at [40].
Shamouil at [39], [57].
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [39] (French CJ, Kiefel, Bell and Keane JJ).
Shamouil at [37].
[2007] NSWCCA 142 at [26], [31] (James J, Harrison J agreeing), [56] (Rothman J).
(2016) 94 NSWLR 1; [2016] NSWCCA 174 at [91] (Rothman and McCallum JJ agreeing).
Hughes v The Queen [2017] HCA 20; 92 ALJR 52 at [40] (Kiefel CJ, Bell, Keane and Edelman JJ).
(1936) 55 CLR 499 at 504-505; [1936] HCA 40.
Director's submissions, par 42.
[2017] NSWCCA 76 at [37] (Payne JA, Johnson and Fullerton JJ agreeing).
(2014) 87 NSWLR 481; [2014] NSWCCA 136 at [6].
(2011) 81 NSWLR 568; [2011] NSWCCA 63 at [170].
Saoud at [6].
Ibid.
Matonwal at [92].
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48]-[49]; see also Glover v R; Stuart v R [2015] NSWCCA 285 at [93], [112].
Judgment, p 1.
Judgment, p 3.
See, eg, R v Ollis [1900] 2 QB 758.
DAO, fn 17 above, at [150] (Simpson J);
[2014] NSWCCA 144 at [43] (Emmett JA, Price and Fullerton JJ).
Hughes at [17].
Emphasis added.
[2017] NSWCCA 202.
Tcpt, 27/11/17, pp 4(38)-5(10). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2018

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