R (Cth) v Seguel

JUDGMENT

1. WILSON J: In November 2023, the respondent was due to stand his trial having been indicted for an offence of attempting to possess a marketable quantity of an unlawfully imported border controlled drug contrary to ss 11.1(1) and 307.6(1) of the Commonwealth Criminal Code ("the Code"). An issue arose, before a jury was empanelled to hear the trial, as to the admissibility of some of the evidence the Crown intended to adduce before the jury, with his Honour Judge Turnbull SC later excluding part of the evidence. The Crown having indicated its intention to challenge the ruling, the trial was adjourned. The trial is now listed to take place on 2 April 2024 in Sydney.
2. Pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW), the Commonwealth Director of Public Prosecutions appeals against the decision of the trial judge. Two grounds are advanced: Ground 1: The trial judge erred in excluding the "electronic evidence" specified in prayers 6 and 7 of the Respondent's notice of motion on the basis that it was only relevant as tendency evidence pursuant to ss 97(1) and 101 of the Evidence Act 1995 (NSW). Ground 2: The trial judge further erred in finding that the probative value of the "electronic evidence" specified in prayers 6 and 7 of the Respondent's notice of motion was outweighed by the danger of unfair prejudice to the Respondent pursuant to s 137(1) of the Evidence Act 1995 (NSW).
3. Section 5F(3A) of the Criminal Appeal Act provides a qualified or conditional right of appeal to the Crown. It is in these terms: 5F Appeal against interlocutory judgment or order (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case.
4. The respondent disputes that the exclusion of the evidence about which the Crown complains "eliminates or substantially weakens" the Crown case, and thus there is an initial jurisdictional challenge to be determined. That necessitates consideration of the nature of the Crown case and the evidence available to the Crown to be called in support of it.

The Crown Case

1. During the voir dire hearing before the trial judge, the Crown tendered a statement of its case, supplemented by other evidence, including statements and reports from witnesses, and oral evidence. Drawing on that material, the case the Crown alleges against the respondent is as follows.
2. On 6 April 2021, a consignment that had been dispatched by air from Malaysia on 30 March 2021 arrived at the Australian border in Sydney. An officer of the Australian Border Force examined the consignment, which was documented as, and appeared to contain, "books, snacks, and clothes" packed inside a cardboard box. After emptying the box, the officer slashed the top and walls of the box, revealing a white powdery substance that had been packed in two clear plastic bags secreted within the cardboard of two sides of the box. Presumptive tests of the powder suggested that it was heroin.
3. Two days later, the package was deconstructed and the powder was removed and formally tested. The first plastic bag contained 230.2 grams of heroin with an average purity of 68.5%. The second bag contained 198.1 grams of heroin with an average purity of 68%. The calculated total pure weight of heroin was 292.39 grams. The drug, if sold at street level, was worth between $125,000 and $1,750,000, the variation in estimate being attributable to the differing ways in which the drug could be distributed.
4. Officials reconstructed the parcel, without the heroin, and sealed it. It was thereafter sent for delivery as part of a controlled delivery to the nominated consignee, Joe Desmid, at a Botany address. On the late morning of 13 April 2021, a police officer, posing as a delivery driver, attended the respondent's residential address, that being the consignment address in Banksia Street at Botany, to deliver the package. No-one was at home. A second attempt was made to deliver the consignment shortly before 1.30pm that day, with the front door of the property opened by the respondent's elderly mother, Iris Seguel. Mrs Seguel was advised that the driver had a package for Joe Desmid. She said that Joe Desmid was not there but would return shortly.
5. A third attempt to deliver the package to "Mr Desmid" at the respondent's home was made at about 2pm that day. The door was again answered by Mrs Seguel who appeared to recognise the driver and said, "I'll go get him". The respondent then came to the door. The driver and the respondent had a conversation concerning the package: Dario Seguel: Is this for me? What is it? Officer: Are you Joe Desmid? Dario Seguel: Yes, what have you got? Officer: I've got a parcel that needs a signature.
6. The respondent then signed the consignment note as Joe Desmid. He accepted delivery of the package and took it into his home.
7. The police operative left and, minutes later, other officers arrived, and the respondent was arrested and cautioned. A search warrant was thereafter executed at his home. Other than the unopened package, a number of items of interest were found and seized, including seven mobile phones; three tablet devices and a laptop computer; multiple SIM cards in SIM packaging; a black computer tower that was located with a monitor displaying the respondent's name as the user; large baking trays containing a white crystal substance;1 quantities of acetone; a set of digital scales showing deposits of a brown residue [1] that were secured in a safe; a sum of cash amounting to $8000 in $50 and $100 denominations; a taser and set of handcuffs; some ammunition and three butterfly knives.
8. Expert evidence establishes that crystal salts and acetone combined with heat, such as in an oven on large trays, are commonly used to create anhydrous acetone, which can be used to purify illicit drugs.
9. Following his arrest, the respondent was interviewed by investigating police and the interview electronically recorded. The respondent said in part that: 1. He had lived at the Banksia Street address since 2015 with his elderly parents; 2. No other person resided at the address, although an ex-partner stayed overnight on occasion; 3. He did not use the name of the consignee and never had; 4. His source of income for the previous eight years had been a Centrelink payment, from which he saved a little money, with about $3000 kept by him at his home, to avoid government scrutiny; 5. The digital scales found inside the safe were used to weigh buttons; 6. He thought the powdery residue found on the digital scales was talcum powder from the buttons; 7. He used the acetone and white powder - which was Epsom salts or rock salt - to purify things when working in his landscape business such as in the removal of chewing gum, but the water in the salts had to be removed; 8. The stun gun and handcuffs were connected with his former employment in security from 1988 to 1992; 9. He had two mobile phones being a Samsung phone and an Umidgi Power 3 phone; and 10. His phone number was given.
10. Police inquiries concerning Mr Desmid established that he and the respondent were close friends, having last spoken with each other (prior to these events) on 30 March 2021. Mr Desmid lived some distance away in another part of Sydney. He was interviewed by police, denying any knowledge of the package received by the respondent in his name. He said he had any packages delivered to his home address and had not arranged for a package to be sent to him from Malaysia. It is expected that Mr Desmid will give this evidence at the respondent's trial.
11. The electronic devices seized from the respondent's home were later forensically examined. It is evidence extracted from these devices that is largely the subject of the impugned orders of the District Court. An examination of the black computer tower revealed that the computer had been used to access the Tor web browser including by conducting searches. This particular web browser permits searches to be made of the internet anonymously, with multi-layered encryption and other mechanisms engaged to hide the originating IP address of the user. It is primarily used to access Darknet websites that cannot be reached through ordinary services. It deletes "session information" on exit, deleting any record of the date on which a site is accessed or how frequently such access occurred.
12. Analysis of the tower showed that the Tor browser had been used between 11 February and 18 March 2021 to access a number of apparently drug related web pages, sites or searches. That browser was deleted and moved to the "recycling bin" on 29 March 2021.
13. Another dark web browser, Brave, was used on 14 February 2021 to access the website 'drugs.forum.com'. Between that date and 18 March 2021 activity relating to the online purchase of drugs and the purification of drugs was recorded. On 18 March 2021 at 6:03:24pm the Brave web browser was used to access a website with a URL containing the key words "how to buy illegal drugs", "darknet" and "bitcoin".
14. At a time prior to 29 March 2021, the "DuckDuckGo" browser was used to conduct a search for the terms 'Buy+cocaine+online'. The DuckDuckGo browser is a private browser intended to encrypt or hide search terms, so that the search does not appear in the browsing history on the device.
15. A search of Drugs.Forum was conducted using the Brave browser at 10:02:12pm on 29 March 2021 to access the thread "purification-of-cocaine-through-an-a-b-extraction-for-the-connoisseur.38798". Another similar search was conducted via the "drugs.forum.com" website on 8 April 2021 at 7:44:31pm, also using the Brave web browser, to access a thread on the forum named "TEK- - Purification of cocaine through an A B extraction for the connoisseur Drugs-Forum".
16. The Umidgi mobile phone was found by police in a desk drawer in a room used as an office or study, that the respondent later stated was his second room. A photograph was found on this phone which depicted the screen of a second phone displaying an image of what appears to be the consignment note for the package received by the respondent on 13 April 2021. There are some differences between the note depicted in the image and the consignment label that had been affixed to the package in Malaysia, such as the weight of the item, [2] but the details, including the consignment number, sender, and consignee details, were otherwise identical. Metadata establishes that the image on the Umidgi mobile phone was created using that device at 2:24:17pm on 31 March 2021, the day after the package was deposited with the carrier in Malaysia for despatch by air to Sydney.
17. Also on this mobile phone were numerous messages and screenshots of messages utilising the application Whatsapp and employing terminology typically associated with the sale and supply of illicit drugs. The messages included this, sent as a Whatsapp message at 11:42am on 28 October 2020: "Hey man. I'm not saying you've done nothing. BUT, the agreement was for 100 fucken points. So I've been fucked over."
18. On 16 November 2020 at 07:24:05 a message was sent from the Umidgi phone that read: "I tell you what man. Tell these guys to give me the last 2,K not in $ but with producto. 10 points."
19. Expert opinion evidence as to the language used in these and other communications is available to the Crown. That evidence "translates" some of the drug related language, including the reference to "points" as a measure of drugs; "paper" equating to payment or money; "K" meaning thousand, and "producto" referencing drug product.
20. A screenshot from the phone of 22 December 2020 records a bank transaction of that date in which $2000 was transferred to the respondent's bank account.
21. Sent from the Umidgi phone on 15 February 2021 was this: "Ok. So U r either an idiot or way too wasted on his knows what fucken drugs. Let me tell u something important & give U some good advice. 1) check your notes from conversations 2) check a Callandar for dates 3) count with your fingers Now I picked up on Thursday 11/02/21. You told me to hold on because if the missing amounts. On Friday 12/02/21 you gave me the go ahead. I clearly told you it takes 3 fucken days. So let's count together. Saturday 1 day. Sunday 2 days. Monday 3 days. So today Monday is 3 days. And it's ready. So today I needed to get some further scans. That's right. I GAD MAJOR CRANIAL SURGERY TO REMOVE A FUCKEN LARGE TUMOR. [3] I then met up with some people & handed samples as they've been waiting for it. So late today or tomorrow, I will have confirmed orders which I will fulfill. Remember that I am also working in Chinos things. He has offered 15k per key I process. He does one a month. So that's 180k a year. Even if he only does 1/4 of this. It's 45k in my pocket, & he doesn't hassle me. SO, calm d fuck down & let me do what U need to do. Cause remember el Flaco fucked things up & I had to fix things."
22. Expert opinion as to the meaning of this message is to the effect that it discusses the provision of drug samples (as part of a drug supply business) and the processing of a prohibited drug, that being a process that required three days to complete. The references to "k" equate to thousand, whilst "key" means kilogram.
23. On 20 February 2021 at 12:21:04am, a screenshot on the phone was last modified. The screenshot depicts a "glide_cache" message, sent in the course of a chat with "Del flaco" that reads: "Dude wtf….. Sort this 78 points asap, would appreciate u acknowledge when Will you be ready. Here i have the number u need to call, and hand over the paper Work, that is 78 points @150 = 11700,can u please hand over asap… And keep me updated."
24. Also found by specialist police on the Umidgi phone were five videos, transferred to the device on 17 March 2021, that depict a man's hands, in which a male voice is heard giving instructions in Spanish concerning the packaging of illicit drugs into ordinary items in such a way as to avoid detection. The video shows the male demonstrating the steps to package drugs into a foil food bag, with oral commentary. The process is shown being performed on a large and distinctive plate that is patterned with a palm tree design. Exactly such a plate was located by police when the respondent's home was searched. The Crown alleges that the hands shown on the footage are the same in appearance as the respondent's hands, and the voice is similar to his. [4]
25. All the digital evidence, other than the screenshot of the consignment note referred to at [21] above, was excluded from evidence by the trial judge.

The Voir Dire Proceedings

1. The respondent's trial came before his Honour on 20 November 2023. The trial judge was advised verbally by trial counsel for the respondent that there were a number of objections to evidence, although no Motions had been filed to set out the nature and scope of the objections to be dealt with, as proper procedure required. The voir dire thus commenced with some lack of precision as to exactly what the trial judge was asked to exclude, and the bases of the objections taken. [5]
2. After the court received documentary evidence relevant to the issues oral evidence was heard from two witnesses, Renee Summerside, a specialist officer with the Digital Forensic Unit of the NSW Police Force, who gave evidence on 20 November 2021; and Senior Constable ("S/C") Daniel Pietersma, who had acted as delivery driver and whose short testimony was taken the following day.
3. On 26 July 2023, Ms Summerside examined the Umidigi mobile phone, and a Samsung mobile phone seized from the respondent's home by police, and analysed the extracted data each contained. She prepared a report setting out what she found. She also reviewed the analysis of the devices removed from the respondent's home that had been conducted by another officer and agreed with it. Ms Summerside explained the process of analysis of metadata that had been used to obtain the information summarised above. S/C Pietersma confirmed the steps he took in initially examining the suspect package, and later in delivering the package to the respondent's home address.
4. That testimony concluded the Crown case on the voir dire; there was no case for the respondent.
5. On 21 November 2023 there was some discussion between counsel for the respondent and the trial judge concerning the impugned evidence, with his Honour raising the question of the characterisation of the electronic evidence as "similar fact", "propensity" or "coincidence" evidence. The Crown Prosecutor disavowed any intention of relying on the digital evidence as tendency or coincidence evidence. She told the court: "I don't rely on it for that basis. I say it's circumstantial evidence of a course of conduct; otherwise, could be categorised as context evidence; […] - "
6. The Crown Prosecutor observed that the evidence was of direct relevance to proof of the respondent's state of mind when he received the package, being either that he knew the package contained a border controlled drug, the exact nature of which was irrelevant, or that he was reckless as to the contents of the package. She submitted: "[…] the Crown says when all of that evidence is viewed as a whole, it is circumstantial evidence of a course of conduct being what the Crown will say is a significant degree of participation in the drug trade; that is, doing videos about how to package up cocaine, making various searches online involving the purchasing of border controlled drugs. There's clearly evidence of supply of border controlled drugs. There's clearly evidence of supply of border controlled drugs going on, and potentially purification of said drugs in the home of the accused."
7. In written submissions the Crown referred the court to the decision of Harriman v The Queen (1989) 167 CLR 590, noting that the evidence was admissible on the same basis as identified in Harriman. It was submitted that it was of direct relevance to proof of the fault elements of the offence.
8. When asked by his Honour to give "the bottom line" as to whether any tendency or coincidence notices (pursuant to s 99 of the Evidence Act 1995 (NSW)) were intended to be served by the Crown, the court was told they would not. That position was confirmed before this Court.
9. Counsel for the respondent submitted to his Honour that objection was taken to the digital evidence because it had no relevance or, if it did, it should be excluded pursuant to s 137 of the Evidence Act. The trial judge intervened, asking counsel: "What do you say about this argument trenchantly adhered to that it is not tendency, it is not coincidence; it is context? How do I see it in that way? Firstly, the admission of evidence under the context has to be just simply 55. So, is that what you're saying to me? If that's the Crown's position, then it's just got to be seen in that way? … If, though, contrary to the Crown's submission, I'm of the view that it does not get seen in that way, where does that place us, for example in relation to bad character?"
10. There followed a discussion along the lines suggested by his Honour, with counsel for the respondent taking up the line of argument suggested to him. The respondent was given leave to file a Notice of Motion during the hearing of the voir dire to specify the evidence to which objection was taken. The Motion was different in some respects to the oral outline of objections, leading to at least some confusion. Relevantly, the evidence to which objection was taken, and with which this Court is concerned, is: "6. The following 'electronic evidence' discovered on an examination of the accused's 'devices' as set out in the expert certificate of Craig Horsley [EX A Tab 6]: i. Image 2: EX A at 53 - web browser history: a. 'how to buy illegal drugs online with the darknet for bitcoin and more explained'. b. 'buy cocaine online' ii. Image 3: EX A at 53 - web browser history: a. 'how to buy illegal drugs online with the darknet for bitcoin and more explained'. iii. Image 4: EX A at 54 - web browser history: a. 'buy cocaine online'. iv. Image 5: EX A at 54 - web browser history: a. 'drugs forum'. b. 'how to buy illegal drugs online with the darknet for bitcoin and more explained'. v. Image 6: EX A at 55 - web browser history of visit to 'drugs forum': a. Artifact - 'Picture' 'TEK - purification of cocaine through an A_B extraction for the connoisseur'. vi. Image 7: EX A at 55 - web browser history of visit to 'drugs forum': a. Artifact - 'purification of cocaine through an A_B extraction for the connoisseur'. vii. Image 8: EX A at 56 - web browser history: a. Artifact - 'How to extract cocaine from a cut at DuckDuckgo'. viii. Image 11: EX A at 59 - WhatsApp screenshot . ix. Image 12: EX A at 60 - WhatsApp message of 28/10/2020. x. Image 13: EX A at 61 - WhatsApp message of 16/11/2020. xi. Image 14: EX A at 62 - WhatsApp message of 15/02/2021. xii. Image 15: EX A at 63 - Bank transfer / receipt dated 22/12/2020. 7. The following 'electronic evidence' discovered on an examination of the accused's 'devices' by Renee Summerland [EX A Tabs 7, 8 & 9]: i. The three pictures: [EX A pages 79 - 81] ii. The five videos: [EX A pages 83 - 91, CCS at paragraph 29]."
11. The messages retrieved from the mobile telephone were submitted to lack relevance or, if relevant, to be little more than evidence of bad character. The absence of any expert opinion to identify the hands and voice on the drug packaging videos was pointed to as a feature going to the irrelevance of the evidence, further highlighted by the fact that the packaging method demonstrated on the footage differed from that used to pack the drugs the subject of the charge. This evidence too was characterised as evidence of bad character. The evidence collectively extracted from the digital devices was submitted to be prejudicial as it could show that the respondent was involved to a significant extent in the illicit drug trade.
12. The trial judge gave his ruling and delivered reasons on 24 November 2023. Having set out in brief the nature of the disputed evidence and the submissions of the parties, his Honour rhetorically asked, "Is the challenged evidence context or background evidence, or is it tendency or coincidence evidence?" He later gave a partial answer, in observing that: "Here, arguably is a situation where the challenged evidence may, at first blush, appear capable of satisfying the description of context or background evidence, but simply asserting that evidence is 'context' or 'background' evidence is not sufficient. By reference to the very helpful analysis in the commentary provided by Odgers in his Uniform Evidence Law, 18th edition, at page 831, the point is emphasized. That point is made, and it is made on more than one occasion throughout the commentary, relating to evidence which is neither tendency evidence nor coincidence evidence - considerable care is required, because there are 'a number of (sometimes overlapping) examples … of evidence which may not fall within the definitions of tendency evidence or coincidence evidence'."
13. Referring to La Rocca v R [2021] NSWCCA 116, the final answer to the initial question the court posed for itself was given: "Put plainly, the challenged evidence here gives rise to, in my view, similar tendency reasoning. The jury will be expected to reason, that the accused's conduct the subject of the challenged evidence proves that he had a particular state of mind - that he knew or was reckless to the consignment containing a border-controlled substance - by tendency reasoning, in that the inference sought to be drawn is, because of the accused's conduct the subject of the challenged evidence, it was more likely that he knew or was reckless as to the consignment containing a border-controlled substance. In my view that places the evidence comfortably in the realm of propensity reasoning, and La Rocca I have to say seems on all fours with this case, or relevantly on all fours with this case, no two cases are precisely the same. Of course, it is binding authority, and the consequence to that appellant in that case, was that the appeal against conviction was successful, and there had to be a retrial. So, that assists in ensuring close consideration to the nuances of this argument and the proper approach."
14. Having concluded that the disputed evidence satisfied the definitions of tendency and coincidence evidence, the trial judge was of the view that the only way in which the evidence "tended to show guilty knowledge and association is via tendency reasoning". His Honour continued: "In any event in addition to that, even if the lack of notice is not determinative, I am of the view that the Crown cannot establish significant probative value as they have styled this evidence, so it must be excluded in any event, under s 101, see also La Rocca at paragraph 105. Returning to first principles, I accept the arguments raised by Mr Royce, again, given the manner in which the Crown intends to portray this evidence, in that it will create impermissible and very unfair prejudice as it currently stands. It does no more than set out aspects of bad character and as styled in argument, it cannot assist the jury in relation to an issue which the Crown prays the evidence to aid, and there is a real prospect of its misuse and an inability to craft an appropriate direction in these circumstances. In my view its probative value is therefore outweighed by the danger of unfair prejudice, and therefore I must refuse to admit the evidence adduced by the prosecution in these proceedings."

The Arguments on Appeal, in Brief

1. Both parties dealt initially with the jurisdictional question and then the question of the correctness of the decision of the District Court to exclude the digital evidence.
2. Pointing to the elements of the offence to be proved - an intention to possess a border controlled drug as originally in the package; and knowledge or recklessness as to the substance being a border controlled drug - the Crown submitted that the excluded evidence had significant probative weight with respect to both. There being no direct evidence as to the respondent's intention to possess the substance, the Crown is obliged to rely upon the jury drawing an inference from the circumstantial evidence. To prove recklessness, the Crown must establish that the respondent was aware of a substantial risk that the package contained a border controlled drug and, unjustifiably in light of the circumstances known to him, took the risk in accepting the package.
3. The Crown argues that the Darkweb searches concerning the online purchase of cocaine and the purification of drugs that were conducted by the applicant in a short period prior to the dispatch of the package from Malaysia, is evidence of an intention by him to procure illegal drugs including but not limited to cocaine internationally and process it domestically. All the circumstances, including the computer searches, the respondent's possession of scales and materials to purify drugs, the digital messages pointing to knowledge of and involvement in the trade in such substances, and the receipt of a package not addressed to him, form part of a connected set of events forming a transaction continuous with the offence charged. It is evidence highly probative of the respondent's state of mind at the time of receipt of the package; and it also goes to rebut the anticipated defence case, being to deny knowledge of or recklessness to the contents of the package, and potentially pointing to Mr Desmid as the real offender. The evidence points inevitably to the unlikelihood of the package having been received by the respondent in circumstances other than as alleged by the Crown.
4. The Crown contends that the probative value of the evidence is high; the corollary of that is that its exclusion substantially weakens the Crown case. The Court's jurisdiction is thus established.
5. As to ground 1 of the appeal, the Crown argues that the trial judge was in error in concluding that the only true relevance of the excluded evidence was its impermissible use as tendency evidence, which dictated its exclusion from evidence. It is submitted that the excluded evidence is capable of placing the respondent's receipt of the package in the context of an ongoing enterprise involving the receipt and subsequent processing of illicit drugs.
6. With respect to ground 2, the Crown points to the available conclusion that the trial judge, having determined that the evidence must be excluded as failing to meet the test set out at s 101 of the Evidence Act, went on to give a further basis of exclusion, being s 137 of the Act, in concluding that the danger of unfair prejudice to the respondent outweighed the probative value of the evidence. Insofar as the trial judge intended to exclude the evidence on this alternative basis, the Crown contends that it was an error to do so, as the probative value of the evidence was high, and any danger of unfair prejudice, potentially occasioned by the jury engaging in impermissible tendency reasoning, could be adequately addressed by direction.
7. On the jurisdictional question, the respondent submitted that in the absence of the excluded evidence the Crown case as to his recklessness or knowledge of the contents of the package remains "compelling", relying as it does on the fact that the package was addressed to someone else, that the respondent purported to be that person in taking delivery, and that his mother appeared to know that he intended to accept a package directed in a different name.
8. The respondent also disputes the evidentiary value of the excluded evidence. He points to the absence of direct evidence to establish that the drug related computer searches were conducted by him, or that the searches were reflected in the methods actually used to acquire the heroin delivered to the respondent's address (there being no evidence of an online purchase, or of the use of bitcoin). Emphasis is placed upon the fact that the various computer inquiries related to cocaine and not heroin, diminishing its value as part of the res gestae of the commission of the alleged offence and making it qualitatively distinct from the nature of the evidence considered in Harriman. On that basis, it is submitted that the evidence is not of sufficient probative value to have the effect of eliminating or substantially weakening the Crown case by its exclusion, and jurisdiction does not arise.
9. As to ground 1 of the appeal, the respondent takes a different view of the way in which the reasons of the trial judge should be understood. He submits that his Honour did not exclude the evidence as tendency evidence in accordance with s 101 of the Evidence Act, but rather, that the judge "misspoke" and was intending to refer in the relevant section of his judgment to s 97, before going on to use language pointing to the decision to exclude the evidence being based upon s 137 of the Act. The respondent therefore submits that ground 1 is misconceived because, in truth, the trial judge did not exclude the evidence on the basis that it was only relevant as tendency evidence. The alternative argument is that, if the trial judge did in fact exclude the evidence as tendency evidence, he was correct to do so.
10. With respect to ground 2 and referring to his submissions as to the value of the excluded evidence advanced in relation to the jurisdictional question, the respondent submits that the probative value of the evidence if used for a non-propensity purpose, if any, is extremely low. The danger of unfair prejudice, on the other hand, is very high, in that it would expose the respondent to an improper line of reasoning in which a jury could conclude that, because he was involved in the drug trade, the respondent must be guilty of the offence charged.
11. Acknowledging that the jury could be given directions about this danger, the respondent nevertheless submits that the task of crafting a direction suitable to the circumstances of this case, and this evidence, is an impossible one, and no direction however worded could ameliorate the potential for unfair prejudice.

The Jurisdiction to Hear the Appeal

1. To prove the charge against the respondent, the Crown must prove that he attempted to possess an unlawfully imported border controlled drug in a marketable quantity. Proof to the criminal standard of two fault elements is required. The first is that the respondent intended to possess the substance that was contained within the package when it entered Australia. The second is that the respondent knew or was reckless as to the substance being a border controlled drug as provided by s 5.4 of the Code. [6]
2. There is no direct evidence to go to either fault element, in that the respondent has not conceded knowledge of the contents of the package or that he purported to be Mr Desmid to secure possession of it. The Crown must therefore rely on circumstantial evidence from which inferences may be drawn. In the absence of the excluded evidence the Crown case is confined to the following pieces of evidence. 1. The respondent had on his mobile phone an image of another phone displaying a version of the consignment note relating to the package. The image was taken the day after the package was consigned for transport in Malaysia. 2. The respondent's mother showed no surprise when the delivery driver sought to deliver a package for Joe Desmid and called her son without demur as the consignee. 3. The respondent represented himself to be the person nominated as the consignee when the delivery driver arrived to deliver the package and signed for receipt of it in the name of Mr Desmid. 4. Mr Desmid denies any knowledge of the package. 5. Found in the respondent's home were materials that can be used to purify illicit drugs, a set of digital scales of the kind typically used to weigh drugs, and $8000 in cash, made up of only two denominations.
3. Those pieces of evidence fall to be considered in circumstances where, judging by the recording of the execution of the search warrant on the respondent's home, the respondent's mother is very elderly (82 years of age), has limited English language skills and, it might be argued by the respondent, did not understand the interactions with the delivery driver, and fetched her son as a person better able to deal with the driver. There was no electronic recording of the delivery of the package to the respondent, with potential for the respondent to dispute what S/C Pietersma asserts was the conversation at the door. During the course of the execution of the search warrant, the respondent appeared to do exactly that when the conversation was put to him by the officer (designated "O1" in the transcript): O1: I waited, I had a consignment sheet and position number seven, I've said are you Joe Desmid you've gone yes D: (shaking head) I- I'm not Joe Des- I O1: I've written down- D: don't think I, I don't think I've said-(inaudible) O1: (inaudible) this whole situation Dario I've had contemporaneous notes that I've made as soon as I've had this interaction with you okay D: I asked you about the address, I asked you what the package was O1: You acknowledged that you were Joe D: (sighs) O1: You've asked what is the parcel, I've gone I don't know, are you Joe, you've gone yes O4: Ok, so do you agree that what happened after the officer here has then handed you the package what did you do D: I-I asked several questions with regards to the package.
4. Mr Desmid was a close family friend and a visitor to the premises from time to time, with the respondent appearing to refer to him during the execution of the warrant as "Uncle Joe", and implicitly suggesting he was responsible for the position the respondent was in. When asked by searching police officers who Joe was the respondent said: "Ugh, ok I - Not gonna answer that because I'm gonna get myself into trouble and Uncle Joe, fuckin' kill him (long sigh)."
5. The respondent went on to appear to express some mystification concerning the package, responding, when asked what he was going to do with it: "I don't know, I asked the gentleman, I asked the officer uh who it was for, the address, what it is, where it was from cause and he couldn't tell me anything and I'm like (shrugging gesture)."
6. In the later interview recorded with the respondent following his arrest, [7] he gave exculpatory explanations for his possession of multiple SIM cards, digital scales, and acetone and Epsom (or rock) Salts; and, as a person in receipt of social security benefits, for his possession of a relatively large amount of cash.
7. In my assessment, the Crown case without the excluded evidence is significantly diminished. Although the respondent's possession of an image of the consignment note is important, it might be argued that even with this evidence, the Crown case gives rise to only slightly more than a high degree of suspicion, as opposed to proof beyond reasonable doubt of the fault elements of the charged offence. The remaining evidence is likely insufficient to rebut an inferred defence in which intent to possess a border controlled drug and knowledge or recklessness as to the substance, were denied, possibly by pointing to Mr Desmid as the person responsible for the package. On that analysis, I have no hesitation in concluding that the exclusion of the particular evidence "substantially weakens" the Crown case against the respondent, and thus that the pre-condition to the jurisdiction of the Court is established.

The Appeal

1. Equally, I have no hesitation in concluding that the trial judge erred in excluding the evidence the Crown sought to lead. Although the language used by the trial judge does not always directly reflect the relevant statutory provision, it is clear enough that his Honour excluded the evidence as being limited to tendency evidence that failed to meet the test set out at s 101 of the Evidence Act. That test is, relevantly: 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (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 outweighs the danger of unfair prejudice to the defendant.
2. To exclude the evidence as tendency evidence was an error in my opinion.
3. To the extent that his Honour also used language suggestive of exclusion pursuant to s 137 of the Act, that also was an error. The evidence should have been admitted and, for the reasons that follow, I would allow the Crown's appeal and order that the evidence be admitted at trial.
4. There could be no doubt that the respondent physically received the package that had formerly contained heroin, and that the heroin had been unlawfully imported. The real question for the jury at trial will be whether the respondent did so intending to possess a border control drug, knowing or reckless as to the substance. The excluded evidence goes directly to proof of state of mind, on a basis other than tendency or coincidence evidence, the latter being a basis upon which the Crown does not rely. It also has a further relevance, being evidence which is capable of directly rebutting what can be inferred to be the respondent's case.
5. It is well established that even what might otherwise be evidence of bad character or "propensity" can be admitted if the use to which it is to be put is a relevant use not relying on the accused person's propensity to the commission of similar offending. In Harriman, Brennan J put that principle in this way, at 593 - 594: "The reason underlying these principles is that the law refuses to accept in proof of guilt evidence which does no more than show the commission of, or predisposition to commit, other offences even if they be offences of the same or similar character as the offence charged: see Sutton v. The Queen; Noor Mohamed v. The King. Evidence that an accused has committed other offences of the same or similar character is inadmissible unless the evidence is of such probative force in the instant case that it would be an affront to common sense not to admit it. Or, to put it another way, unless the probative force of the evidence clearly transcends the merely prejudicial effect of showing that the accused has committed other offences. […] However, where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. If, as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence or a propensity to commit an offence, the evidence is admissible. I would therefore respectfully agree with McHugh J. that evidence of events which are part of the res gestae is admissible - and will usually be admitted - even if that evidence reveals the commission of an offence other than the offence charged." (Footnotes omitted)
6. His Honour went on to say that it would be rare for evidence admissible in this way to be excluded in the exercise of the judicial discretion. Although Harriman is a decision from 1989, pre-dating the 1995 Evidence Act, the statement applies to relevant exclusionary provisions in the Act.
7. In his analysis of the issues in Harriman, Toohey J emphasised the "underlying principle" of relevance which should be the focus of any inquiry as to the admissibility of evidence (at 607 - 608). The fact that evidence falls into a particular category, such as propensity evidence, similar fact evidence, or tendency evidence howsoever called, does not dictate the admissibility or inadmissibility of the evidence. The real focus must be upon the fact in issue the evidence is tendered to prove and its capacity to rationally affect the probability of the existence of that fact. Thus, evidence may demonstrate a tendency on the part of the accused person to engage in some criminal or other discreditable conduct; if it is not tendered for that purpose however, but rather as relevant to a fact in issue, it will nevertheless be admissible.
8. The evidence may be relevant as part of the res gestae, or as "transaction" evidence; as McHugh J pointed out in his judgment, at 628: "[…] there are many cases where evidence is admissible although it reveals criminal conduct on the part of the accused. As Windeyer J. pointed out in Reg. v. Makin: '... you can give evidence of the commission of another crime when the evidence concerning the other crime is either a part of the res gestae in the case before the Court, or where the evidence about it is so connected with the prisoner as to explain his conduct or motives in the transaction which is the subject of the trial.' Even though evidence reveals other criminal conduct on the pan of the accused, it will be admissible if it is 'evidence of facts forming part of the same transaction as that under inquiry' (i.e. part of the res gestae): Cross on Evidence, 3rd Aust. ed. (1986), p. 1004; and see R. v. Bond; R. v. Herbert; O'Leary v. The King; R. v. Evans; Reg. v. O'Regan; Bell v. The Queen; Reg. v. Williams. Moreover, evidence of collateral facts tending to prove the facts in issue (i.e. circumstantial evidence) is also frequently admissible even though the evidence reveals other criminal conduct of the accused." (Footnotes omitted)
9. The examples given by McHugh J of evidence that can be described as part of the res gestae or transaction evidence are instructive, such as that drawn from R v Etherington (1982) 32 SASR 230, in which evidence of previous sexual offences was held to have been properly admitted because they formed a "continuous transaction" with the charged offence; or that considered in R v Rhodes [1899] 1 QB 77, wherein evidence of frauds that post-dated the charged offence was admitted because it demonstrated the nature of the scheme in which the appellant was involved, being the pretence of a bona fide business used to defraud.
10. McHugh J also considered the admissibility of "relationship cases", also referred to as context or circumstantial evidence (at 630ff), concluding that evidence of uncharged criminal conduct may be admitted to demonstrate the context in which the charged offences occurred. Again, the authorities considered as examples of the operation of the principle are of interest, including R v Garner (1963) 81 WN (Pt. 1) (NSW) at 122, where evidence of a long course of cruelty was held to have been properly admitted to show the "atmosphere of hostility" in which it was alleged that an offence of assault occasioning actual bodily harm was committed. The requirement for the admission of evidence of past criminal conduct for a purpose other than to prove propensity or tendency is that the probative force of the evidence transcends or outweighs the merely prejudicial effect (Harriman at 632).
11. Harriman has been regularly applied, including in those decisions considered by the trial judge. In Quach v R (2002) 137 A Crim R 345; [2002] NSWCCA 519 evidence of intercepted telephone conversations concerning drugs that had taken place prior to the charged offence of supplying a prohibited drug was held to have been rightly admitted, allowing a proper understanding of the charged events. Spigelman CJ considered the applicability of the principles given in Harriman in the context of the Evidence Act, concluding that "the reasoning in Harriman is consistent with the admissibility of evidence of prior heroin dealings on a basis other than tendency reasoning" (at [24]). The then Chief Justice went on to consider the admissibility of evidence of the type discussed in Harriman, observing that, whether such evidence might fall "within the distinct formulation of the tendency rule in s 97" would depend upon the use to which it was to be put. Emphasis was given to the content of s 97, which provides: 97 The tendency rule (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. (Emphasis added)
12. Spigelman CJ noted that the "crucial words are 'to prove'" (at [29]). He continued, at [31] - [33]: "Although the word 'tendency' is not defined, the significance of the words 'to prove' is emphasised by the definition of 'tendency evidence', which is the relevant formulation in s101. Those words are defined to mean 'tendency evidence means evidence of a kind referred to in subsection 97(1) that a party seeks to have adduced for the purpose referred to in that subsection' [Emphasis added]. ('Coincidence evidence' is defined in, relevantly, the same way.) The focus is on the purpose of the tender. Section 97 is irrelevant where evidence is admitted for a purpose other than to show tendency. (See R v AH (1997) 42 NSWLR 702 at 708.) Brennan J's reasoning uses the language of the common law in distinguishing 'predisposition' from evidence 'otherwise probative' of the offence. The same kind of distinction exists under the Evidence Act 1995 between evidence 'to prove … a tendency' and evidence 'to prove' […]."
13. Applying the principles from Harriman and Quach to the present matter, the Crown did not and does not seek to admit the excluded evidence as evidence to prove that the respondent had a particular tendency or tendencies, such as a tendency to acquire and distribute illicit drugs, and thus s 97 and s 101 were irrelevant to the question of its admissibility. The evidence was relied upon for other, relevant, purposes: 1. As evidence that was capable of proving the respondent's state of mind on receipt of the package, being knowledge of its (former) contents of a border controlled drug, or recklessness as to that fact; 2. To prove the respondent's intention to acquire illicit drugs; as part of the res gestae, being a set of connected events forming a single transaction, commencing with the respondent's online searches about the purchase of illicit drugs and its purification and packaging, and concluding with his receipt of the Malaysian package in circumstances where he was equipped to purify and process the drug; 3. To give the full and proper context of the respondent's actions in accepting delivery of a package addressed to another person which had contained a border controlled drug previously imported, that context being his online pursuit of the possession of illicit drugs to process and distribute; 4. To show the unlikelihood of any innocent receipt of the package; and 5. To rebut the respondent's anticipated case, being that he had no knowledge of the contents of the package, and / or, the package belonged to Joe and he innocently took delivery of it for his "uncle". The Crown is obliged to call rebuttal evidence in its case as there are strict limitations upon the availability of a case in reply. See Shaw v The Queen (1952) 85 CLR 365, at 379 - 380, where the principle was explained: "The occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence."
14. The evidence of the respondent's computer searches and website traffic; of the videos it will be open to a jury to conclude he made; and of the messages he sent that evidently reference trade in drugs, is clearly relevant, in that it is capable of rationally affecting the assessment of the existence of facts in issue, being the fault elements of intention and knowledge / recklessness. The evidence is, prima facie, admissible. That some of the computer traffic specifically references cocaine and not heroin is of limited weight, since the Crown does not have to prove an intention to possess a specific border controlled drug; that the evidence supports a conclusion that the respondent was, at the material time, engaged in the acquisition, processing and distribution of a border controlled drug is where its significance is found.
15. I do not see anything in the decision of La Rocca v R [2021] NSWCCA 116, relied upon by the trial judge in excluding the digital evidence, as detracting from my conclusion as to the admissibility of the evidence. La Rocca was quite a different case and distinguishable from the present matter. In it, evidence was admitted in the Crown case, over objection, of a single text message concerning the price of a particular chemical (that can be used as a precursor in the manufacture of a prohibited drug) and internet searches about the chemical. Although the appellant was not charged with manufacturing a prohibited drug, the Crown relied upon the evidence at trial as evidence of a tendency to have an interest in the acquisition of a chemical related to a prohibited drug. On appeal against conviction the Crown argued that, notwithstanding the basis upon which it had relied upon the evidence admitted at trial, the evidence was not in fact tendency evidence, but evidence of the appellant's state of mind, being an interest in the acquisition of a prohibited drug. This Court, constituted by Adamson J (as her Honour then was), Bellew and Cavanagh JJ, concluded that the evidence lacked significant probative value and should have been excluded. The Crown having sought to use the evidence as tendency evidence, the tests in ss 97 and 101 applied and were not met. La Rocca does not dictate that evidence not relied upon for a tendency purpose, and with real probative value with respect to the charged offence, should be excluded.
16. On that analysis, insofar as the trial judge intended to exclude the evidence as tendency evidence, and applied the tests set out at s 97 and s 101 of the Evidence Act, his Honour was in error. See also CA v R [2017] NSWCCA 324, at [82].
17. There is, as ground 2 and the respondent's submissions with respect to ground 1 suggest, some question as to whether his Honour also excluded the evidence pursuant to s 135 and / or s 137 of the Evidence Act, as either the primary basis of exclusion or as an alternative basis for that order. The sections respectively provide: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
18. In the judgment of the lower court, the trial judge said: "In my view that raises here a very real risk that the evidence will be misused by a jury, or be used by jury in an impermissible way, so as to be unfairly prejudicial and misleading; and so there is a very strong case for exclusion under 135 and inevitably under 137 when that arises."
19. Section 135 is a discretionary provision by which the court "may" exclude evidence where the probative value of the particular evidence is "substantially outweighed" by one of the risks enumerated at (a) - (c). Section 137 is a mandatory provision where evidence that is caught by the provision must be excluded. The trial judge referred to the excluded evidence as "unfairly prejudicial and misleading" but also to the "danger of misuse" - concepts from s 135 and s 137. In my assessment, whether the test applied was that provided by s 135 or that set out in s 137, the evidence should not have been excluded.
20. Evidence will be unfairly prejudicial to an accused person where it may do "harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way": The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40, at [73]. The concern expressed by the trial judge was that the jury would impermissibly use the evidence as tendency evidence, reasoning that if the respondent was involved in the drug trade, he must be guilty.
21. Whilst there must be some risk of that danger manifesting, it can be readily addressed by appropriate directions to the jury as required, against a background where the Crown must clearly articulate the uses to which it seeks to put the evidence. Directions of the kind sometimes referred to as "anti-tendency directions" are regularly given, most frequently in sexual assault cases where relationship or context evidence is often admitted for a purpose other than to establish that the accused has a particular tendency. Whether an anti-tendency direction will be required is best assessed in the context of the evidence led at trial, since such a direction will not always be necessary, as the High Court observed in Hamilton (a pseudonym) v R (2021) 274 CLR 531; [2021] HCA 33, at [52]. Noting that, such a direction is likely to be required in this matter, of the kind discussed in JWM v R (2014) 245 A Crim R 538; [2014] NSWCCA 248, Qualtieri v R [2006] NSWCCA 95, at [80], and in Nessim v R [2016] VSCA 46, at [42]-[48] (the latter being a decision to which the trial judge was referred).
22. Strong and clear directions can be crafted along the lines approved by the Victorian Court of Appeal in Nessim and given to the jury. It must be assumed that the jury will obey such directions: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, at [31]-[32]. Directions of that nature will operate to firmly mitigate the risk of misuse of the evidence.
23. Against that is the probative value of the excluded evidence which, in my opinion is very high, for the reasons given when considering the jurisdictional qualification. The evidence has real probative force when used as the Crown proposes, summarised at [75] above. I respectfully conclude that, insofar as he did, the trial judge erred in the exercise of his discretion to exclude the evidence pursuant to s 135 of the Evidence Act; nor did the proper application of s 137 require that the evidence be excluded.
24. Ground 1 and ground 2 have both been made good. For these reasons I propose the following orders: 1. Appeal allowed; 2. Orders of the District Court of 24 November 2023 excluding certain evidence at trial are set aside; 3. Admit the evidence (as summarised at [16] - [29] of these reasons) at the respondent's forthcoming trial.
25. IERACE J: I agree with Wilson J and with the additional observations of Cavanagh J.
26. CAVANAGH J: I have had the benefit of reviewing the draft judgment of Wilson J. I agree with the orders proposed and her Honour's reasons.
27. I share her Honour's view that the rejection of the electronic evidence must substantially weaken the prosecution case and thus jurisdiction is established.
28. The evidence is plainly relevant. The prosecution case is circumstantial. Evidence relating to the applicant's searches about drug purchase and purification and the messages suggesting some involvement in the drug trade would all be relevant, at the very least, to rebutting the defence case and establishing the applicant's state of mind, particularly as the messages and searches took place in the short period before the receipt of the package.
29. In Elomar v R [2014] NSWCCA 303 at [367] (per Bathurst CJ, Hoeben CJ at CL and Simpson J) the Court observed: "Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person's mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference)."
30. In my view, the respondent's reliance on La Rocca v R [2021] NSWCCA 116 is misplaced. In La Rocca, the Crown accepted that there was a risk that the jury would engage in tendency reasoning. Adamson J (as her Honour then was) observed at [103]: "Once it is accepted (as it was by the Crown at trial and in this Court) that the evidence was apt to be used for a tendency purpose, s 97(1) applied to prohibit its admission unless it had significant probative value."
31. Her Honour went on to find (Bellew and Cavanagh JJ agreeing) that the evidence lacked significant probative value and was inadmissible.
32. No such concession has been made in this matter. The prosecution seeks to adduce the evidence as part of the circumstances and context in which the offending took place. The prosecution does not seek to use the evidence for a tendency purpose, for example, to establish that the applicant had a tendency to act in a certain way or that he had a tendency to have a particular state of mind.
33. In my view, the evidence is admissible.

Endnotes

1. This substance was not analysed. The respondent asserted that it was Epsom Salts and, later, rock salts.
2. The residue was not, or was not able to be, tested.
3. 5.66kg and 5.70kg respectively.
4. Evidence is available to the Crown that the respondent had a bifrontal craniotomy for a large complexity meningioma performed on 8 July 2020, with regular follow-up consultations required.
5. Evidence establishes that the respondent is of South American background.
6. Not all the disputes were resolved. An objection to the admissibility of the electronic record of the interview between police and the respondent following his arrest remains to be determined.
7. The Crown does not have to prove that the respondent knew that the drug was heroin or was reckless as to that. The nature of the drug is no more than a particular.

Amendments 23 December 2024 - Publication restriction lifted. 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: 23 December 2024