R v Kaddour

District Court of NSW|2019-03-26

Admissibility of tendency and coincidence evidence

On 26 March 2019 Ahmad Kaddour (the accused) appeared before Gosford District Court for trial.
A judge alone election had been filed. The Crown consented to the matter proceeding judge alone. I was satisfied that the accused had sought and received legal advice in relation to the effect of a judge alone order and, in those circumstances, the matter proceeded as a judge alone trial.
The accused was arraigned on the following indictment:

Count 1 Between the 14th day of December 2010 and the 13th day of December 2011, in Berkeley Vale in the State of New South Wales, produced a prohibited drug, namely, 4-bromo-2,5-dimethoxyphenethylamine, in an amount of 24.868 kilograms, which was not less than the large commercial quantity applicable to that prohibited drug.

Count 2 On the 13th day of December 2011, in Berkeley Vale in the State of New South Wales, supplied a prohibited drug, namely, 4-bromo-2,5-dimethoxyphenethylamine, in an amount of 24.868 kilograms, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.

Count 3 On the 13th day of December 2011, in Berkeley Vale in the State of New South Wales, supplied a prohibited drug, namely, methylamphetamine, in an amount of 2.8463 kilograms, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.

Count 4 Between 14th day of December 2010 and the 13th day of December 2011, at Berkeley Vale in the State of New South Wales, produced a prohibited drug, namely, 3,4 methylenedioxyamphetamine.

Count 5 On the 13th day of December 2011, in Berkeley Vale in the State of New South Wales, supplied a prohibited drug, namely, 3,4 methylenedioxyamphetamine.

The accused pleaded not guilty to all counts.
At the trial it will be alleged by the Crown that the accused had been involved in the production and possession of prohibited drugs (namely, 24.868 kg of 4-bromo-2,5-dimethyoxyphenethlyamine (2-CB), 2.846 kg of methylamphetamine and 41.26 g of 3,4-methyenedioxyamphetamine (MDA)) that were found during the execution of the search warrant on 13 December 2011 at 336 Lake Edge Avenue, Berkeley Vale.
Prior to the calling of any evidence the Crown made an application pursuant to section 97 and 98 of the Evidence Act to lead tendency and coincidence evidence. The application was opposed by Mr Lange who appeared on behalf of the accused.
The tendency and coincidence evidence sought to be relied upon by the Crown at trial related to the accused having pleaded guilty to charges of manufacture of large commercial quantity of prohibited drugs (15.32 kg of MDA ) and knowingly take part in the manufacture of a large commercial quantity of prohibited drugs (1.227 kg of 3,4-methylenedioxy-phenyl-2-propanone (MDP2P) that were found during the execution of a search warrant on 16 August 2015 at 15 Keera Street and 30 Bowen Street, Bingara.

Material tendered on the application

The following material was tendered on the application:
Voir Dire exhibit A1 - A27 (Crown material)
Voir Dire exhibit B - Crown written submissions
Voir Dire exhibit C - Defence written submissions
Voir Dire exhibit D - Statement of Andrew Browning 14 December 2011
Voir Dire exhibit E - Court Attendance Notices for 2015 offences
Voir Dire Exhibit F - Updated Coincidence Notice

The Crown case a trial (the events at Berkeley Vale in 2010-2011)

On 13 December 2011 ICAC investigators executed a search warrant at a property on Lakedge Avenue, Berkley Vale. This property is a residential home that was owned and occupied by Cameron Creary and his family.
At the rear of the property was a large detached garage fitted with a padlocked metal grille door. Inside the grille door was a timber door secured with a standard lock.
Cameron Creary told investigators that he did not have a key to the garage as it was currently leased to a friend of his father that he knew only as "Joe" or "Sam".
ICAC Investigators forced entry and, unexpectedly, found a tablet press and other evidence of drug manufacture. Upon this discovery they immediately secured the garage and contacted New South Wales police.
New South Wales police obtained a crime scene warrant. It was executed with the assistance of the Chemical Operations unit, forensic chemists and Hazmat.
Within the garage police located a 19 stage tablet press regulated by a speed controller, a large metal hopper (used to feed the mixture into the tablet press), multiple press punches with varied logos on them and dies used for dying the tablet mixture.
The following prohibited drugs were found in the garage: 1. Green tablets mark with the' M' McDonalds logo (24.868 kg of 4-bromo-2,5 - dimethoxyphenethylamine) (count 1, 2); 2. 488.3 g of pink tablets and 2.358 kg white tablets mark with a 'Playboy" logo. Total quantity 2.8463 kg methylamphetamine (count 3); and 3. 39 g of pale pink powder and 4 purple tablets marked with a "playboy bunny" logo which weighed 2.26 g. Total quantity 41.26 grams of 3,4-methylenedioxyamphetamine (counts 4, 5).
Also located within the garage were large quantities of inactive compounds that are mixed with the prohibited drugs in order to produce tablets. Those inactive compounds included the following: 1. 825 kg of Comprecel microcrystalline cellulose (a filling and binding agent); 2. Three garbage bags containing 60 kg of magnesium stearate (used as a lubricant to reduce adhesion to prevent tablets from sticking to tablet press); 3. A 20 litre container 50% full with lactose; 4. 23.1 kg of silica powder; 5. 3.365 kg of bright green cellulose (colouring agent); 6.280 kg of pink lumpy powder which contained sysamol; 20 litres of black food colouring.
A forensic chemist was of the opinion that the quantities of inactive compounds had the capacity to produce at least a large commercial quantity of prohibited drugs in tablet form.
Police also located a number of items with drug residue on them that had previously been used in the tableting process; a 19 stage tablet press in functioning order; a cement mixer; a KitchenAid mixer; a food processor; and a coffee grinding machine.
The forensic chemist who analysed the scene was of the view that tableting of MDA had occurred at the premises. There was likely to have been a large commercial quantity of MDA produced at the premises. This was the tableting process most recently undertaken at the premises.
The tableting of 2-CB had also occurred at the premises. Further, the items and equipment at the premises were capable of producing the 24 kg of 2-CB located at the premises. The preparation of tableting mixtures containing MDA and/or 2-CB had occurred at the premises.

DNA analysis

A number of items of personal protective equipment commonly found in drug manufacturing premises were located in the garage including: 1. A half face purifying respirator with two filters attached. A mixed DNA profile was found in the breathing mask. The major component of the mixture had the same profile as the accused. The minor component was of such a low level that further testing was not carried out. The respirator would have been used to minimise the inhalation of airborne particles and hazard vapours in the tableting process. 2. 29 latex gloves containing staining from use. DNA testing was carried out on 3 of the used latex gloves. From the first glove examined, the DNA recovered was the same profile as the accused. 3. From the second used latex glove examined a partial DNA profile was recovered from the tip of the middle finger which had the same profile as the accused. The inside of the palm and/or back of the hand of the glove revealed a mixed DNA profile with the major component of the mixture having the same profile is the accused. 4. From the third used latex glove examined a mixed DNA profile was recovered with the major component of the mixture having the same profile as the accused. 5. DNA was also located on a plastic drinking cup. The DNA recovered had the same profile as the accused.
It is alleged by the Crown that the owner and occupier of the Berkeley Vale premises was known to the accused relying upon contact details for the accused being found in the occupier's telephone and a further email being forwarded by the occupier to the accused.

The facts in relation to the proposed tendency and coincidence evidence (the events at Bingara in 2015)

On 15 December 2011, 2 days after the execution of the search warrant at the Berkeley Vale premises, the accused left Australia. He returned to Australia on 10 January 2012 before again departing on 16 July 2012. He did not return to Australia until 22 February 2014.
After his first return to Australia in January 2012 the offender purchased a large removalist truck. Sometime before his departure in July 2012 the accused drove that truck to Bingara. It contained drums of acetone, methylated spirits, which are chemicals which can be used in the manufacture of the prohibited drug MDA. The accused sought permission of David Rafter to store the truck on his property at Keera Street, Bingara. It was ultimately agreed that the truck could be stored at another house on Bowen Street, Bingara.
The accused and David Rafter had attended school together as children and had also worked together on occasions as adults.
Sometime after the accused return to Australia in February 2014 he also took the trailer section of a truck to Bingara. It was also stored at Bowen Street.
In the months leading up to the accused arrest in August 2015 he visited Bingara with increased frequency. He brought additional chemicals and equipment with him to be used in the manufacture of MDA.
Over this period the accused was engaged in the manufacture of MDA at Keera Street, Bingara with his co-accused Rafter. Various stages of the manufacture process were undertaken in a front garage and a rear shed. Precursors were also stored at the premises.
The MDA manufactured at Keera Street was taken to Bowen Street. The truck trailer was used as a workshop for processing the MDA into tablet form. Both the accused and Rafter were involved in this process. The removalist truck was also used to store bulk quantities of chemicals.
On 8 August 2015 police received information about the operation of a drug laboratory and the involvement of the accused and Rafter. An investigation commenced.
On 13 August 2015 police began covert surveillance of the accused in the vicinity of his home address in Telopea. The accused's ute was parked at the front of the house. There were 2 wooden crates in the tray of the ute. The crates were later found to contain solvent reclaiming units which were intended for use as part of the second stage of the MDA manufacture.
On 14 August 2015 the accused travelled from Telopea to Bingara with the 2 wooden crates in the ute. He arrived at Bingara on 15 August 2015 and the crates were unloaded by the accused and Rafter.
On 16 August 2015 the accused attended Bowen Street. For a period of 4 hours and 40 minutes the accused was engaged in a process of preparing MDA powder for conversion to tablets, converting the powder into tablet form and packaging them. This occurred inside the truck trailer but also involved accessing material in the removalist's truck. During this time Rafter also attended Bowen Street on several occasions during which time he was also engaged with the accused in the process of preparing MDA powder for conversion to tablets, converting the powder into tablet form and packaging them.
On 16 August 2015 Police executed search warrants at Keera Street and Bowen Street, Bingara. Both the accused and Rafter were inside the house. They were arrested and cautioned. Rafter provided the keys for the front garage and the shed each of which was locked.
Inside the front garage police located equipment that was an active manufacture of MD P2P. The estimated total amount of pure MD P2P from the liquid was 1.2227 kilograms. Police also located 1.961 kilograms of saffrole and palladium chloride.
A number of other chemicals essential to the first stage of the manufacture process, although not scheduled precursors, were also found in the front garage and had been brought there by the accused (22.581 kg of benzoquinone and in excess of 27 kg of N,N - dimethylformamide (liquid).
Inside the rear shed police located 3.352 kg of pure MD P2P and in excess of 111 kg of formamide inside four plastic 25 litre cubes. The formamide had been brought to the premises by the accused.
A number of other items were also found in the rear shed which had been used in various stages of the manufacture of MDA including metal stock pots, plastic buckets, a solvent reclaiming unit, a core condenser, a cement mixer (used to combine solid MDA with other dry substances to obtain an impure form of the drug), an industrial size metal dehumidifier unit, two face masks which had been worn to limit exposure to chemicals during the manufacture process. The DNA of Rafter was recovered from a swab taken from the face seal and head strap of one mask.
A number of substances were also located that were identified as "cutting" agents as follows; 21.74 kg of microcrystalline cellulose and 18 bottles of food colouring.
Commonly available chemicals also used in the manufacture process were located including dichloromethane (3 plastic jerry cans), methylated spirits, potassium hydroxide and caustic soda.
There was also scientific and improvised glassware as well as household items located that are frequently used in the manufacture of MDA including metal apparatus, metal stock pots, condenser, electric plates, electric scales, electric motor and pump, pH indicator strips, thermometers, plastic measuring cylinders and jugs, plastic funnel, plastic tubing and coffee filter papers.
Upon arrest the accused denied any involvement in the manufacture.
A search warrant was also executed at Bowen Street, Bingara. Inside the truck trailer at the premises police located an industrial multi-functioning 9 stage tablet press on a metal stand. The tablet press had been brought to Bingara by the accused. Police also located white buckets containing MDA in both powder form and fragmented tablets (7.869 kg), and plastic shopping bags holding multiple vacuum sealed bags containing MDA in tablet form (7.450 kg). In total 15.32 kg of MDA was seized from Bowen Street, Bingara.
There were also many items relating to the tableting process including funnels, scoops and sieves, an electric juicer, an electric tablet dispenser, a coffee grinder, buckets, a vacuum sealer with vacuum sealed bags, a drill press, metal staring bars, plastic jugs, two digital balances and a metal wok.
Also located were plastic gloves including one which had earlier been used in the handling of MDA and which had a mixed DNA profile, the major profile being that of the accused. The accused DNA was also identified as a contributor to a mixed profile lifted off a screwdriver taken by police from inside the truck trailer.
Inside the large removalist truck registered to the accused police located 21 boxes and a garbage bag containing benzoquinone in total exceeding 540 kg. This had been brought to Bingara by the accused. Benzoquinone is an essential ingredient in the first stage of the manufacture of MDA.
A number of other chemicals were found inside the removalist truck that are chemicals often used in the drug manufacture process including 1400 litres of acetone stored in nine 200 L metal drums; 2400 litres of N-N-Dimethylformamide stored in thirteen 200 litre metal drums; 900 litres of dychloromethane stored in seven 200 L metal drums; ethanol in two 200 L metal drums each about 25% full; and methanol in a 20 L capacity container about 33% full.
Various tablet press parts were also located inside the removalist truck. Two other single stage pill presses which had earlier been used in a MDA tableting process were also found in two other sheds on the property. Four glass coil condensers were also found inside the truck trailer, being scheduled drug manufacture apparatus, two discarded large metal heating vessels, similar in appearance to the solvent reclaiming unit found in the back shed at Keera Street were also located at Bowen Street.
Further quantities of substances used in the tablet conversion stage of the manufacture of MDA were also found inside the removalist truck, the truck trailer and inside a tool shed including 19 kg of microcrystalline cellulose and over 75 kg of magnesium stearate.
The accused declined to participate in a police interview.

The relevant law - tendency evidence

Section 97 (1), Evidence Act provides as follows: "(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."

The tendency notice

There is no issue that reasonable notice in writing had been provided to the accused of the Crown's intention to adduce tendency evidence.
The tendency notice identifies that the tendency sought to be proved by the Crown is the accused tendency to act in a particular way, namely: "(a) To produce prohibited drugs into tablet form by adding fillers and binders, lubricants and colouring agents, mixing the drug for cement mixers and creating tablets with the resulting powder through a tablet press; (b) to possess methylenedioxyamphetamine (hereafter MDA) in powder form; (c) to possess MDA in tablet form; (d) to possess large quantities of prohibited drugs.
The Crown seeks to rely upon the following evidence as tendency evidence:
1. The statement of facts in relation to the Bingara events in 2015.
1. The evidence to be lead trial (Voir Dire Exhibit A).
The tendency notice identified that the tendency evidence sought to be adduced is relevant to the following facts in issue in the trial: 1. Whether the accused used the Berkeley Vale premises to produce 2-CB in tablet form; 2. Whether the 24.868 kg of 2-CB located at Berkeley Vale was in the accused possession; 3. Whether 2.8463 kg of methyl amphetamine located at the Berkeley Vale was in the accused possession; 4. Whether the accused used the Berkeley Vale premises to produce MDA; 5. Whether 41.26 g of MDA located at the Berkeley Vale premises was in the accused possession.

Section 97- "significant probative value"

"Probative value" is defined in the dictionary to the Evidence Act as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of fact in issue".
In R v LN; R v AW (No. 1) [2017] NSWSC 119 Johnson J made the following observations in relation to "significant probative value" in the context of section 97, Evidence Act at [85]: "With respect to the concept of "significant probative value", the word "significant" means important or of consequence - it requires more than mere relevance: R v Lockyer (1996) 89 A Crim R 457; Hughes v R [2015] NSWCCA 330 at [163]. The evidence must be influential in the context of fact finding: IMM v The Queen at 314 [46]. As the terms of s.97(1)(b) make clear, an assessment of whether the evidence has "significant probative value" is not confined to the evidence itself, but is to be made having regard to all the evidence sought to be adduced by the tendering party (the Crown): BC v R [2015] NSWCCA 327 at [82]-[83]. What must be assessed is the role that the evidence, if accepted, would play in the resolution of the disputed fact - its capacity to contribute to that resolution: DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 at 774 [72]; BC v R at [83].
Further at [83] "In considering the probative value of evidence under s.97(1)(b), an assumption of the jury's acceptance of the evidence must be made. No question of the credibility or reliability of the evidence can arise: IMM v The Queen [2016] HCA 14; 257 CLR 300 at 315 [52]."
I note that section 98(1)(b), Evidence Act is in the same terms as section 97(1)(b), Evidence Act.
In R v Ford (2009) 201 A Crim R 451 Campbell JA stated as follows (at 485): "All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged."
In Hughes v The Queen [2017] HCA 20 the High Court (Keifel CJ, Bell, Keane and Edelman JJ) observed at [41]: "The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes it more likely the facts making up the charged offence."
Their honours continued at [41]: "In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of the tendency, and (ii) the tendency strongly supports the proof of the facts that makes up the offence charged."
In addition, in Hughes v The Queen the High Court explained [at 39]: "Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence."

Submissions of the parties - Tendency evidence

The Crown submitted that the proof of the accused tendency to act in the ways identified on the occasions that the accused has admitted pursuant to his pleas of guilty and agreed facts are highly probative of his guilt of the offences the subject of the trial.
Specifically, the Crown submitted that there are three distinct aspects of the trial for which the Crown submits the tendency evidence has significant probative value. Firstly, the identity of the person producing and in possession of the prohibited drugs found in the garage, secondly, the extent of the accused's role in the process and thirdly, it can be used to rebut the suggestion of innocent transfer of DNA.
The Crown anticipated that it would be suggested during the trial that, even if the accused involvement in the production of prohibited drugs in the garage at Berkeley Vale is established, his participation could have been to a lesser extent than the production of a large commercial quantity of drugs. The Crown submitted that the asserted tendency would have significant probative value in rebutting any assertion that the accused may have had only a minor role in the production or possession of the prohibited drugs at Berkeley Vale.
Mr Lange submitted on behalf of the accused that in circumstances where the Crown was relying upon a single incident in 2015 as tendency evidence to support the charged offences in 2011, that the 2015 charges did not greatly support the proposition that the accused possessed the identified tendencies as described in the tendency notice.
Further, it was submitted that the evidence relating to the 2015 charges did not demonstrate an "underlying unity". Whilst it was accepted that underlying unity was not a prerequisite to the admissibility of evidence as tendency evidence it was submitted that nonetheless, such similarities are not without importance in assessing the probative value of the evidence (see Hughes v The Queen).It was submitted that this was particularly so because the tendency evidence was being relied upon by the Crown to establish the identity of the accused as the offender.
It was further submitted that in assessing the probative value of the tendency evidence the Court should take into account that the tendency evidence postdates the date on which the accused is said to have acted upon his tendency. Here, it was submitted there is a gap of some 4 years between the two sets of allegations. It is submitted that, unlike in the case of child sexual offences, one cannot logically deduce, from a single incident of manufacturing in 2015 that the accused would have had those tendencies some years earlier, namely in 2011.

Consideration

I am required to consider firstly, the extent to which the evidence in relation to the Bingara events supports the tendency and secondly, the extent to which the tendency makes more likely the facts in issue (see Hughes v The Queen at 41).
In evaluating the effect of the time gap upon the extent to which the evidence supports a tendency, I am satisfied that the following factual matters are relevant: 1. the accused was overseas from 15 December 2011 until 10 January 2012. 2. on 16 July 2012 he was again overseas until 22 February 2014. Sometime prior to the accused departure in July 2012 he drove a large removalist truck to Bingara. It contained drums of acetone and methylated spirits, which are chemicals that can be used in the manufacture of MDA. 3. sometime after accused returned to Australia in February 2014 he also took the trailer section of a truck to Bingara. 4. in the months leading up to his arrest in August 2015 he visited Bingara with increased frequency. He brought additional chemicals and equipment with him to be used in the manufacture of MDA. Over this period the accused was engaged in the manufacture of MDA at 15 Keera Street, Bingara.
Whilst there is a temporal gap between the 2011 events and the 2015 events it has to be considered in view of firstly, the accused's conduct prior to his departure in 2012 of transporting chemicals which can be used in the manufacture of MDA to Bingara and secondly, his continued involvement in the enterprise after his return to Australia in 2014-2015. Having regard to the context, I am not satisfied that the temporal gap reduces the probative value of the evidence in supporting the asserted tendency.
Also, having regard to the nature and extent of the accused's involvement in the production of drugs over a lengthy period of time at Bingara (at least for the months leading up to his arrest), I am not satisfied that it is a proper characterisation of the proposed tendency evidence to describe it as a single incident (which may mean there is a weaker foundation for admissibility as tendency, since tendencies suggests a pattern of behaviour: see defence written submissions Voir Dire Exhibit C, paragraph 28). Rather, given the duration of the episode of criminality in 2015, I am satisfied it demonstrates repeated behaviour from which it is rational to infer the existence of the asserted tendency.
Having considered the evidence, to the extent that the Crown is seeking to rely upon the tendency evidence as to identity, I am not satisfied it has significant probative value in circumstances where the proposed tendency evidence does not rise above features that would be commonly present at premises used for drug manufacture.
However, to the extent that the tendency evidence is relied upon by the Crown to rebut firstly, any assertion that the accused may have had only a minor role in the production and possession of the prohibited drugs at Berkeley Vale and secondly, any asserted innocent explanation for the transfer of DNA, I am satisfied the proposed tendency evidence has significant probative value. This is particularly so because the Crown case at trial in relation to the accused's production and possession of each of the prohibited drugs is circumstantial.

Section 101(2), Evidence Act

Section 101 (2), Evidence Act provides as follows: "(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."
Whilst ordinarily, the court would also have to consider section 101(2) Evidence Act it is agreed between the parties that in circumstances where the matter is proceeding as a judge alone trial there will be no unfair prejudice to the accused.
Accordingly, the evidence in relation to the Bingara event is admissible as tendency evidence for the limited purpose of rebutting any assertion that the accused may have had only a minor role in the production and possession of drugs at Berkeley Vale and any asserted innocent explanation for the transfer of DNA.

The relevant law - coincidence evidence

Section 98, Evidence Act provides as follows: "(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."

The coincidence notice

There is no issue in relation to reasonable notice having been given by the Crown of the intention to adduce the coincidence evidence.
The two or more events identified in the coincidence notice which are the subject of the proposed coincidence evidence were identified as follows: 2. The two or more events which are the subject of the proposed evidence are the production and supply of 3, 4 Methylenedioxyamphetamine (MDA)at 336 Lakedge Drive BERKELY VALE on and prior to 13 December, the subject of counts 4 and 5 on the indictment in the present trial matter of Ahmed KADDOUR (2015/371832), and facts relating to the manufacture of MDA at 15 Keera Street BINGARRA and 33 Bowen Street BINGARRA on and prior to 16 August 2015 to which the Accused has pleaded guilty and is awaiting sentence (2015/239598). The relevant similarities relied upon by the Crown are: 1. In each case a detached garage/shed of a family's residential home was used for the purpose of producing prohibited drugs and storage of related items; 2. The garages/sheds were secured with locks; 3. In each case 3, 4 methylenedioxyamphetamine ('MDA') was present in significant amounts in tablet and powder for at the premises; 4. Large quantities of substances which were not prohibited drugs were present at each of the premises for the purpose of being combined with MDA prior to production of tablets containing MDA, including: a. Microcrystalline cellulose, b. Food colouring, and c. Magnesium stearate; 5. In each case a cement mixer was used to combine MDA with these other substances in preparation of powder to be pressed into tablets containing MDA; 6. In each case kitchen appliances, such a mixers and coffee grinders were used in the preparation of powder to be pressed into tablets containing MDA; 7. In each case multi-stage table press, with tablet punches bearing a variety of logos, was used for producing MDA in tablet form; 8. In each case personal protective equipment including face masks and surgical gloves were used in the process of producing MDA in table form; 9. The Accused's presence inside each of the garages/sheds is indicated either by surveillance or the presence of DNA profiles which match the Accused's DNA profile.
The coincidence evidence is to be tendered to prove that the accused did a particular act, namely: 1. used premises at Berkeley Vale to produce MDA in tablet form; and 2. possessed 41.26 g of MDA at Berkeley Vale for the purpose of supply.
The Crown relies upon the coincidence evidence in relation to counts four and five on the indictment (each count relating to MDA).

Section 98 - General principles

In R v Gale; R v Duckworth [2012] NSWCCA 174 Simpson J identified a series of steps to be taken in relation to the consideration of coincidence evidence as follows at [31]:

"the first step is to identify the "particular act of a person" or the "particular state of mind of a person" that the party tendering the evidence seeks to prove;
the second step is to identify the "two or more events" from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the "particular act" or had the "particular state of mind";
the third step is to identify the "similarities in the events" and/or the "similarities in the circumstances in which the events occurred" by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events;
the fourth step is to determine whether "reasonable notice" has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement);
the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, "have significant probative value";
in a criminal proceeding, if it is determined that the evidence would have "significant probative value", the sixth step is the determination whether the probative value of the evidence "substantially outweighs" any prejudicial effect it may have on the defendant (s 101(2)).
the sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two."

In this matter, the particular act of the accused that the Crown seeks to prove is that the accused committed counts four and five on the indictment, namely produced a prohibited drug 41.26 g of MDA and also supplied a prohibited drug, namely MDA in the same quantity.
The two events from the occurrence of which the Crown seeks to prove that the accused committed those offences is: 1. The events at Berkeley Vale in 2011. 2. The events at Bingara in August 2015.
The "similarities in the events" relied upon by the Crown are as identified in the Coincidence Notice.
There is no issue in relation to reasonable notice being given.

Submissions of the parties

It was submitted on behalf of the accused that there were a number of differences between the events and that none of the asserted similarities relied upon demonstrated that it is improbable that the events occurred coincidentally.
I note that it was conceded similarity did arise in relation to the production of possession of MDA however, it was submitted that, of itself, was incapable of giving rise to coincidence reasoning.
In oral submissions the Crown conceded that the similarities identified in (1) to (8) in the Coincidence Notice would not, of themselves, be capable of having significant probative value in the context of coincidence reasoning unless considered in combination with (9).
In respect of (9), it was submitted on behalf of the accused that whilst the accused's DNA was found at each of the premises, the question is whether that fact combined with the other similarities has "significant probative value" having regard to alternative explanations for the presence of the DNA.
Reliance was placed on the following observations of Whealy JA in DSJ v R, NS v R [2012] NSWCCA 9 at [78-80]: "In this appeal the Crown has conceded that, in performing the task under s 98, a trial Judge may, in an appropriate case, have regard to an alternative explanation arising on the evidence. The Crown, however, insisted that, in so doing, the trial Judge is restricted to examining whether the Crown hypothesis has cogency, that is, whether the Crown evidence is capable of being regarded as significant in its ability to prove the Crown case. If the coincidence evidence, either by itself or having regard to other evidence in the Crown case, positively and forcefully suggested an explanation consistent with innocence, then the coincidence evidence could scarcely be regarded as important or of consequence in proving the fact or facts in issue. What is required is this: the trial Judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the Judge's view, rob the evidence of its otherwise cogent capacity to prove the Crown's case? If it does not, the trial judge may safely conclude that the evidence has significant probative value. In a practical sense, there are two avenues of approach to be taken. First, in examining the coincidence evidence (together with other material already in evidence or to be adduced) the trial Judge is required to ask whether there emerges, from a consideration of all the Crown evidence, a possible explanation inconsistent with guilt. For regard to be had to the alternative explanation, it must be a real possibility, not a fanciful one. It must be a broad or overarching possibility, capable of being stated in general terms, even though it may derive from an individual piece or pieces of evidence or the evidence taken as a whole. Secondly, the trial Judge must ask whether that possibility substantially alters his (or her) view as to the otherwise significant capacity of the coincidence evidence to establish the fact or facts in issue. Of course, if the trial Judge has already concluded that the coincidence evidence does not reach that level of significance in terms of its capacity, he will have rejected the evidence in terms of s 98. In that situation, the possibility of an alternative inference may, for the time being, be set to one side. Later in the trial, when the evidence has concluded, that possibility will become a matter for the jury to assess and determine when it comes to consider whether the Crown has proved its case beyond reasonable doubt."
It was submitted on behalf of the accused that having regard to the number of alternative hypotheses consistent with innocence (transference, inability to date DNA, explanations which are innocent, DNA found on movable items) that the court would not be satisfied the evidence sought to be relied upon as coincidence evidence has significant probative value.
The Crown submitted that in considering whether the proposed coincidence evidence has "significant probative value" the court should have regard to the items upon which DNA was located.
The Crown submitted that whilst the DNA was located on portable items, four of the items (a breathing mask and three latex gloves) are connected with the manufacture of prohibited drugs. The DNA located at Bingara was on a glove, also an item connected with the manufacture of prohibited drugs.
Also, the Crown relied upon the improbability of people not connected with the process being able to enter the fortified area (see Voir Dire exhibit D - statement of Andrew Browning, paragraph 25). The Crown submits that the alternative explanations would not substantially alter the courts view of the significant probative value of the evidence.
It was further submitted on behalf of the accused that the Court should properly have regard to the fact that the glove upon which a DNA profile matching the accused was located at the Bingara premises was a different type of glove namely, it was described as a plastic glove rather than a latex glove.

Consideration

The question for determination is whether the proposed coincidence evidence has significant probative value in the context of coincidence reasoning and the facts in issue in the trial.
Whilst the Crown submitted there was similarity with respect to the drug manufacture itself, I am not satisfied that such similarities, of themselves, would be of significant probative value in the context of improbability reasoning in circumstances where the features of the drug manufacture identified would be common features.
However, to the extent that the Crown relies upon the location of a DNA profile matching the accused on items involved in drug manufacture at each location, I am satisfied the evidence has significant probative value in the context of improbability reasoning. What gives the evidence is significant probative value is the link between the accused and drug manufacture items found at each location (see generally CW v The Queen (2010) VSCA 288 in relation to reliance upon circumstances other than the actual alleged offending itself to establish a basis for coincidence reasoning).
Further, I do not consider that the fact that the glove located at the Bingara premises was a different type of glove diminishes the significant probative value.
In relation to the relevance of dissimilarities in the context of assessing the probative value of coincidence evidence the observations of the Court (Leeming JA, Schmidt J and Wilson J ) in Selby v R [2017] NSWCCA 40 are instructive at [24]: "The questions posed by ss 98 and 101 ultimately turn on a mode of reasoning based on the improbability that something was a coincidence. That mode of reasoning is not displaced by the fact that the two (or more) events bear some dissimilarities. Two (or more) events will always be dissimilar in some respects. The question is whether the dissimilarities undercut the improbability of something being a coincidence."
In my view, once it is accepted that a DNA profile matching the accused is found at each of the Berkeley Vale and Bingara locations on one or more items of protective equipment capable of being used in the production of MDA, then I do not consider a difference in the particular type of protective equipment at each location diminishes the probative value of coincidence reasoning.
In Selby v R the Court stated at [26]: This point was made in El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [74], in a passage which concluded "[t]he question is whether the similarity is explicable by coincidence, not whether there are other points of difference." The same point was made in Page v The Queen [2015] VSCA 357 at [59]: "[O]nce the identified similarities can be said to raise the improbability of coincidence - and hence give the evidence its probative value - the existence of dissimilarities will not diminish that probative value. For it is the similarities on which coincidence reasoning rests. If the nature and/or extent of the similarities is such that coincidence is improbable as an explanation, the existence of dissimilarities cannot alter that position." The question instead is whether the dissimilarities are relevant in that they detract from the strength of the inferential mode of reasoning permitted by s 98. "
Also, I do not consider that the probative value of the evidence is diminished by the alternative explanations identified on behalf of the accused for the transfer of the DNA. This is particularly so because of the multiple items associated with drug manufacture upon which the accused's DNA profile is located at the Berkeley Vale premises.
Accordingly, I am satisfied that the evidence of the events at Bingara in 2015 has significant probative value and can be relied upon to support the inference that the accused was responsible for the production and possession of MDA at the Berkley Vale premises.
Again, in circumstances where the matter is proceeding as a judge alone trial I have not considered s 101(2) of the Evidence Act.
Accordingly, the evidence in relation to the Bingara events is admissible as coincidence evidence in relation to counts 4 and 5 on the indictment.

Amendments 11 February 2020 - Correction of quote format paragraph 66 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: 11 February 2020

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