R v Smith

THE ISSUES FOR RESOLUTION

1. The central part of the objections raised by the accused and the prosecution's basis for relying upon the alleged criminal conduct of the others and/or the prior conduct of the accused was concerned with the Notice to which I referred, which was dated 12 May 2015 (exhibit 2) to be read in conjunction with particulars supplied in what were described as "Submissions" dated 20 February 2015 (exhibit 2A).
2. The history of this matter is not fully disclosed to me, as reams of transcript preceding this trial no doubt would reveal, but the accused was earlier tried before me and a jury in relation to events directly arising out of his arrest at a hotel, or motel, in Sydney on 25 October 2013. That trial was
3. concerned with his possession of child abuse material, and he was found guilty by that jury last week. However, it seems as though the accused came before the District Court sometime in February last year, to be tried in front of another judge, and although it is not germane to anything I am considering at the moment, I understand, and it is a very loose understanding, that it was proposed at that trial that the accused be tried jointly in relation to the current matter and the charge, the subject of the previous trial.
4. It is in this context I would understand, although it does not matter a great deal, that the Submissions to which I have referred, which are exhibit 2A on the voir dire, were prepared. It would seem by the date of the Notice, the trial having not proceeded in February last year for reasons best known to the judge and given there was then the quite unacceptable 13 or 14 month delay before the matter came back before another judge, the prosecution had previously reflected an indication at the first proceedings that there would be a desire to rely upon tendency reasoning as the Submissions (dated Feb 2015) explicitly and/or a implicitly indicate in their terms.
5. The Notice in its terms states that the Crown intends to adduce evidence of "tendency", that is: "Evidence of the character, reputation or conduct of a person or a tendency that a person has or had 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."
6. This reflects the terms of s 97(1) of the Act. The Notice says the person whose "tendency" is the subject to the evidence sought to be adduced is the accused, Andrew David Smith.
7. As the matter has been argued before me, and as the evidence has been produced, the Notice, in fact, is incorrect. What the Crown sought to rely upon was not just the tendency of Mr Smith to act in a particular way, but also the tendency of Niko and Van Zwam to act in a particular way, and/or to have a particular state of mind. No point has been taken in relation to this matter. The matter was argued before me with the understanding that that was the Crown's intention, and certainly I do not propose to strike down what the Crown would wish to do because of any inadequacy in the Notice.
8. The Crown in its Notice said that it intended to adduce evidence of tendency to prove that the accused, Andrew David Submit had: "(i) a tendency to act in a particular way; namely, to intentionally import a substance concealed in his bag/luggage by travelling by airplane to Australia for monetary rewards and: (ii) that the accused had a particular state of mind in that he knew or believed, or was reckless as to, the substance being a border controlled drug."
9. In para 4 of the Notice, the Crown seeks to rely upon these specific tendencies: "(i) a tendency to act in a particular way, namely, to intentionally import a substance concealed in his bag/baggage by travelling to Australia by airplane from Africa for monetary reward in March 2013 and October 2013: (ii) that the accused had a particular state of mind and that he knew or believed or was reckless as to the concealed substance being a border controlled drug which was contained in his luggage."
10. I pause for a moment to point out that the use of the word "substance" reflects the wording of the legislation, as I understand it; that is, the relevant provision of the Commonwealth 'Criminal Code'. I accept that the word "substance" is, in effect, a substitute for the expression "goods" which was formerly used in related provisions in the repealed, or the repealed parts of the, "Customs Act".
11. The Notice of the Crown states that the "substance of the tendency evidence" that the Crown intends to adduce is contained within statements and documents which have been previously served.
12. The following further evidence is identified as being "relied upon in support with respect to the alleged tendencies": "The accused's first trip to Australia on 16 19 March 2013; The accused's trip to Indonesia on 28 May 2013 4 June 2013; The three "Word" documents retrieved from the accused's Dell top computer found amongst his personal possessions following his arrest on 25 October 2013; Various emails dated between March 2013 and June 2013 retrieved from the accused's Dell laptop computer; Various text messages received by the accused in May and June 2013 on the Nokia E71 mobile telephone seized as part of the accused's personal possessions at the time of his arrest; The evidence from the witness Eric Van Zwam (statement dated 23 April 2015) including his dealings with Niko Nuora and with "Lamin" (the accused) in Gambia, and in Abidjan, on the Ivory Coast in Africa in March 2013."
13. Reliance is also expressly stated in the Notice to the "submissions document" purportedly dated 12 May 2015, served with the notice. The submissions document that has been tendered here, exhibit 2A, is, in fact, dated 20 February 2015. I am assuming that they are the same document. The Notice also states: "So far as it is known by the Crown, the particulars and the date, time and place and circumstances at or in which the conduct referred to in paras 3 above occurred are contained within the documents referred to in para 5 above."
14. Paragraph 5 being the various matters that I have pointed to above that have been quoted .Likewise, the names of persons who "saw, heard or otherwise perceived" relevant conduct are identified within that area of information in the Notice.
15. The relevant material that is concerned with the subject matter of those areas of evidence has been tendered.
16. I have swathes of copies of emails, Facebook entries, text ( or SMS) messages and the like. However, much of it has been helpfully identified in narrow form in the Submissions, so far as the Crown relies upon the content of "Word" documents, emails and/or text messages. The text messages having a pertinence primarily, as I understand it, to what the Crown would seek to rely upon in proof of guilt of the accused in this trial concerning his trip to Indonesia on or about 28 May 2013 until 4 June 2013 Although there is some connection in a circumstantial evidence sense with person or persons said to be involved in the importation of border controlled drugs by Van Zwam and Niko.
17. In relation to the material within the Submissions at para 10 are set out extracts from three 'Word' documents found in the folder of the laptop computer seized from the accused. The accused's laptop computer was very much at the heart of the previous trial, and I heard ,it might be said, far too much evidence about the operation of that computer and the way in which folders were set up and various other aspects of its operation. It suffices, for the purposes of this voir dire examination, to point out that the Court is satisfied that a jury could accept, or the evidence is capable of establishing, that there is an intimate connection of the accused with the 'Word' documents. Prima facie, at least, the contents of the relevant 'Word' documents relied upon by the Crown would appear to be created by the accused and thus could be admitted as containing relevant "admissions".
18. One 'Word' document was created 31 May 2013. A second 'Word' document was created 1 July 2013 and the third Word document was created not on the date contained within the earlier prepared Crown Submissions, but on 18 July 2013. The Crown's submissions refer to it being created on 1 July, but that could well be a typing error. I have naturally read all the relevant material. I will come back to the terms of those Word documents at a later time.
19. The Crown's Submissions set out a series of emails recovered from the Dell laptop computer, with either senders or recipients having email addresses that are capable of being connected directly to the accused being, in effect, his email addresses. The accused, it would appear on the evidence available to the Court, had a number of emails addresses, which is not an unusual situation in itself. The email communications are dated from 19 March 2013 up until 7 June 2013.
20. The relevant texts relied upon by the Crown in the Crown's Submissions and in a supplementary document that was provided by the Crown date from 19 April 2013 and conclude, as best I can work out, on 17 October 2013.

THE COURSE OF THE VOIR DIRE

1. In the voir dire examination I received, as I said, a great deal of documentary evidence, running to an exhibit marked 11A. Apart from original documents such as emails that have been downloaded from the accused's laptop computer, 'Word' documents and the like, I also was provided with a "Statement of Facts" prepared by Federal Agent Whelan which brings together a great deal of material that can be found within the original material tendered and also provides a chronological survey of various aspects of the investigation relating to this accused, on his arrest on 25 October in respect of this matter and the matter the subject of previous trial, as well as the investigations conducted in relation Niko and Van Zwam.
2. Included are photographs of the 'suitcases' or bags that were said to belong to Niko, Van Zwam in March 2013 and the accused in October 2013 . The relevant suitcase concerning the accused is exhibit 6. That is the suitcase that was delivered by Australian Federal Police at approximately 6.09pm on 25 October 2013, the accused being arrested, it would appear, within minutes of its delivery.
3. Also, I have transcripts of the proceedings before his Honour Judge King SC in relation to the sentencing of Mr Van Zwam, his Honour's remarks on sentence, a document which was a confidential document tendered in the sentencing proceedings relating to Mr Van Zwam and a 'photo board' document which was shown to Mr Van Zwam, as I understand it in April 2015, to provide him with an opportunity, if he could, to identify the man that he referred to in his statement as "Lamin", a man he met in Gambia, it would appear in his statement in early March, and again met in the Ivory Coast on 14 March 2013. I have also seen a video recording of the identification procedure.
4. I had oral evidence from Mr Van Zwam who was in custody serving a prison sentence imposed by his Honour Judge King. That matter is apparently the subject of appeal. No date for hearing has been listed and according to JusticeLink, no grounds for appeal have been filed. I also heard oral evidence from Federal Agent Whelan, who now is the officer in charge, but was involved in various stages of the investigation, and as I have earlier indicated, written submissions from the Crown. I have entertained oral submissions from the learned counsel for the accused and the learned Crown Prosecutor. All that evidence and those submissions have been taken into account.
5. I must set out a factual context as it relates to both this trial and the matters that are sought to be adduced in evidence in proof of the guilt of this accused, particularly the events concerning the activities of the accused, Van Zwam and Niko in March of 2013 and perhaps before.
6. As I have earlier indicated, the accused was arrested on 25 October 2013 at around about 6.20pm in room 435 of a hotel described in one of the documents tendered at the previous trial as the Formule 1 Hotel somewhere near Kingsford Smith Airport. The accused had arrived in Australia on 23 October 2013 carrying a backpack, which a jury could conclude contained the 'Dell Laptop' computer from which many of the documents that I have received on this voir dire examination were downloaded.
7. As I said earlier, the accused was arrested almost immediately after he received delivery of the suitcase, which is shown both in a un deconstructed and then reconstructed state in exhibit 6. There is evidence available about the circumstances of the accused's arrival.
8. As I understand the matter from the statement prepared by Federal Agent Whelan, the Crown case is that the accused was in possession of 1.938 kilograms of pure methamphetamine. The gross weight was greater, but taking into account the percentage of purity, that was its relevant weight. The suitcase, which apparently got separated from the accused in circumstances that are not of any importance here, had been, in effect, intercepted by the Australian Federal Police and Customs, had been examined and the relevant border controlled drug had been removed and some form of 'inert' substance of a similar weight was placed, it would seem without great attention to disguising the fact, back in the suitcase. The accused, by the circumstances of his arrest, did not have any real opportunity to open up the suitcase if he wished and see what was inside.
9. The accused is a citizen of the United Kingdom, and as I understand the matter, had lived in West Africa, particularly in an area Gambia, which is shown in a map tendered of that region of the African continent since at least 2012. The accused was in possession of child abuse material, but his possession of that material apparently was identified incidental to the primary investigation in respect of the border controlled drugs found in the suitcase.
10. Niko and Van Zwam were arrested on their arrival in Sydney on 22 March 2013. As I understand the matter, like the accused, they were living in Gambia in 2012 and early 2013, and like the accused, they had travelled from Gambia to the Ivory Coast, and then they had travelled from the Ivory Coast via Paris to Singapore then to Australia. Whether the accused followed this precise route is not entirely clear. Niko and Van Zwam were each in possession of a suitcase which ultimately was found to contain the same type of border controlled drug as alleged to be imported by the accused seven months later.
11. Paragraphs 30 to 47 of the 'Statement of Facts' (exhibit 1) set out the detailed account, if I can call it that, of the circumstances of their arrival and arrest in Australia. Paragraphs 94 to 108 of the Statement of Facts set out matters in detail relating to the accused and his arrival in October that year.
12. If one reads paras 34 to 36, there are some obvious mistakes in the 'Statement of Facts', and there is not a clear indication of precisely how much methamphetamine was in Niko's possession. As best I can work it out, given what appear obviously to be typographical errors and the like, Van Zwam was in possession according to the 'Statement of Facts' I haven't checked this I must confess with the judgment of Judge King in detail of approximately 3.97 kilometres of pure methamphetamine. Judging from the stated street value of the drug, Niko was in possession of a similar quantity. It could be that that quantity, 3.97kg, is a combination of the two quantities found in the respective suitcases.
13. The Crown indicated that it would wish to rely upon evidence of claimed similar chemical structure of the drugs in the possession of Van Zwam and Niko with the border controlled found, allegedly, in the possession of the accused in October 2013.
14. Mr Van Zwam pleaded guilty to a charge of importing a commercial quantity of a border controlled drug in June 2014 and was sentenced by his Honour Judge King on 18 June 2015. As I said earlier, I have got a transcript of much of those proceedings, which is relevant to understanding precisely how he came to give the statement which has been tendered in these proceedings that sets out the details of his prospective evidence in this Court.
15. Niko pleaded 'not guilty'. He was acquitted at trial. As I understand the matter he claimed at trial that he had a belief that he was importing into the country gold, in either crushed or powdered form. This issue is, I would understand, went to the question of whether, in fact, he was relevantly "reckless" as that may be relied upon by the Crown to prove the substantive charge brought against him.
16. Although Mr Van Zwam pleaded 'guilty' he likewise claimed that he did not know that it was a border controlled drug in baggage and that he believed it was "crushed gold". Niko is obviously no longer in Australia, although I have seen the transcript and read parts of the transcript of the evidence he gave at his trial.
17. Mr Van Zwam in his evidence in this trial on the voir dire supplemented the contents of his statement. Particularly his evidence was concerned with matters relating to how he came to make his statement, the circumstances of his contact with the person Lamin, the description of the person Lamin, what he understood to be the reason for making his statement and what benefits he sought to achieve.
18. In my view, not a great deal of significance emerged from his evidence on the voir dire that would cause the Court to assess the probative value of the evidence of the witness adverse to the basic contentions of the prosecution. I bear in mind the decision of the High Court, to which I will make extensive reference in a moment, of R v IMM [2016] HCA 14, which was handed down last Thursday week on 14 April 2016.
19. There is one aspect of his evidence, which is self evident, that is relevant to the assessment of his credibility. Noting, as IMM through the plurality, makes clear, issues of credibility and reliability are not matters required to be , nor can be, taken into account by a Judge in determining issues relevant to the admissibility of the evidence pursuant, for example, to s 97 of the Act. That one matter is that it is obvious from the transcripts of the proceedings relating to him, the terms of his statement and the evidence he gave before me, as well as the sentencing remarks of his Honour (EX 9A) in conjunction with the evidence of Federal Agent Whelan, that Mr Van Zwam's statement and evidence is compelled by the desire on his part to obtain advantage in his sentencing proceedings and that he had been approached to provide assistance to the Australian Federal Police and the Commonwealth Director of Public Prosecutions in the prosecution of the accused. Obviously, if his evidence was admissible, the Court would be obliged to give a proper warning in relation to that matter, if it was sought. For example, pursuant to s 165 of the Act. Ultimately, that matter is not a matter that greatly or substantially affects the assessment of his evidence for the purposes of these proceedings in any event .
20. The other matter that emerged from his evidence on the voir dire is that he could not identify the accused in a photo board line up. I do not think this ultimately is a matter of great significance. I appreciate he gave the person Lamin, that he met at least once in Gambia and again on 14 March 2013 a greater height than the accused self evidently has. I bear in mind that he could not identify the accused from the photo board line up. But there is ample evidence from other sources capable of establishing that the accused has held himself out to have the name "Lamin".
21. The essence of Mr Van Zwam's account, primarily through the statement that he gave by 23 April 2015, was that he met a man called Alex in Gambia in November 2012. Alex, as I understand it, was an indigenous African person. He set out the circumstances of that meeting in para 18 of his statement.
22. He was propositioned at a particular point to take "gold" to Australia. He subsequently became aware that others had done it. He met a Finnish woman (Niko was a Finnish man) called Mina in January 2013 and, as best I can work out from his statement, he and his girlfriend/wife/partner met Alex in about February 2013 when they were shown a package of what were described as goal shavings as evidence of what he was being required to take to Australia (para 27). He said in his statement that he agreed to "take the job" in March 2013, and, in fact, after agreeing with Alex to do "the job" he met, he said, Niko, later that day. Niko apparently owned a bar in the relevant city where these events were happening in Gambia (see paras 29 30).
23. It was disclosed to him that there was a plan for he and Niko to go from Gambia to the Ivory Coast. He, in fact, went to the Ivory Coast with Niko, and details of that are set out at paras 34 to 37. At para 44 of his statement he said had he met another man in the Ivory Coast he described as "Tony". He was an African man, as he was described, and he provided money for hotel expenses and the like to Niko and Mr Van Zwam.
24. Between 12 March 2013 and 19 March 2013, Mr Van Zwam and Niko stayed at the Hotel Golden, a hotel, the Crown can establish has a connection with the accused. He said that on 14 March 2013 he was having breakfast, and he saw Niko and Lamin sitting together at a table. He saw Lamin in the possession of a black laptop, the Dell laptop to which is referred to as a "black laptop". Lamin told him that he had come to the hotel "yesterday evening". The two men, Niko and Lamin had a beer and then talked about going into town. Van Zwam did not join them.
25. That day, in the afternoon, he was on the terrace having a cigarette and Niko came and joined him. At about 7 or 8 o'clock in the evening Tony arrived, and it would appear that Lamin was there at one point. Lamin said, "I have to go to my room and pack my stuff. I'm leaving now. I'm going to Australia." Questions were asked about travelling to Australia by Tony, Niko and Van Zwam, and about half an hour later, Lamin came downstairs holding a black or brown suit bag, a carry bag for suits, and a laptop over his shoulder and a suitcase in this left hand. Lamin left the hotel in Tony's distinctive car and they drove off. He never saw or had contact with Lamin after that time (see paras 44 through to 53).
26. One other part of the statement included, but obviously not admissible, is the contents of para 73 involving some conversation between Niko and Van Zwam when they were in custody in Australia sharing a cell. The evidence in its terms appears to be, at least, second hand hearsay and could not be relied upon as evidence of the truth of what is asserted without Niko giving evidence at least.
27. There are some other features arising from the evidence in the voir dire. This is not an exclusive statement of them. Van Zwam had within his mobile phone contact numbers for Tony, Alex and the person Lamin. It would appear on the accused's seized mobile phone he had contact numbers for Tony, Alex and "Niko/Eric". I point out in the material presented to me, particularly, for example the 'Word' documents that I have referred to that form part of exhibit 3 on the voir dire, that the accused would appear to refer to Eric also as the "Hollandaise". That reference is capable of being a reference to Mr Van Zwam, particularly in the context of mentioning him along with references to Niko or sometimes Micko/Miko.
28. There are electronic or digital documents that are capable of establishing that the accused calls himself Lamin Sanyang. Particularly I note, for example, set out in the context of the statement of facts, entries or pages in Lamin Sanyang's Facebook account. Within that account there is evidence, as I understand it, of photographs of the accused, or in my view clearly showing the accused, "updating his profile".
29. There are many documents relied upon by the Crown as establishing the accused's connection with travels to Australia in March 2013 and he reflecting upon those travels. The Crown has, amongst other potential exhibits, the Incoming Passenger Cards of the accused for March/October 2013. I note matters raised by the Crown in the course of oral submissions, which had escaped me beforehand, that the Crown relies upon within the Incoming Passenger Cards the false claims by the accused that he had not been to Africa in the previous six days, which based upon the account of Mr Van Zwam, cannot be true. Particularly in relation to this March travels.
30. The Crown claims that there is the, at least, suspicious circumstance that the accused had a perfectly valid British passport which he used to enter Australia in March, but before it had expired had issued to him another passport, obviously with another number. The Crown submits that these falsities in the incoming passenger card in March and in October, as well as the different passports, reflect an attempt by the accused to cover his trail. That might be so in relation to the card, but whether it could be so in relation to the use of different passports is a matter which to me is one of some considerable speculation. Be that as it may, I note that submission by the Crown.
31. As I said, there are various documents and records made by the accused that reflect the knowledge on his part the fact that Niko and Van Zwam had travelled to Australia, and, in fact, had been apprehended by the authorities. I have taken all that material into account.

LEGAL ISSUES AND PRINCIPLES

1. With regard to the legal issues in the trial, it is important that I set out some of the relevant provisions with which I am concerned.
2. Section 55(1) of the Act provides: "The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in proceedings."
3. Section 56(1) of the Act provides: "Except as otherwise provided by this Act, evidence that is relevant in proceeding is admissible in the proceeding."
4. Then there are various exclusionary rules, the hearsay rule, the opinion rule and the like.
5. Part 3.6 of the Act is concerned with the issue of "tendency and coincidence". The Part "does not apply to evidence that relates only to the credibility of a witness." (s 94 of the Act). The tendency rule is expressed in s 97(1), and I earlier quoted it from the Crown's Tendency Notice. The relevant provision in s 97(1) states in respect of the fact that evidence of the character, reputation or conduct of a person, or a tendency that a person has, is not admissible to prove that the person has or had a relevant tendency 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 parties seeking to adduce the evidence, have significant probative value."
6. The critical issue arising out of that section in this voir dire has been whether the Court is satisfied that the evidence sought to be relied upon for tendency purposes has "significant probative value".
7. Another relevant provision is s 98. This is concerned with the 'coincidence rule'. Section 98(1) states: "Evidence that two 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 similarity in the events or the circumstances in which they occurred, or any similarities from both events in the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: ……… (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, has significant probative value."
8. Section 101 of the Act provides in respect of ss 97 and 98 at s 101(2): "Tendency evidence... or coincidence evidence... that is adduced by the prosecution cannot be used against the (accused) unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the (accused)."
9. Section 137 of the Act provides: "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 (accused) ."
10. Section 97 in the context of the provisions of the Evidence Act was considered in the decision of IMM .The passages which are quoted are contained within the judgment of the majority. Whilst the Court unanimously agreed to the disposal of the appeal, by a majority of four to three the Court determined matters relevant to the understanding and analysis of s 97, particularly of the Act. Their Honours discussed three particular decisions of immediate appellate courts, R v Dupas [2012] VSCA 328, R v Shamouil [2006] NSWCCA 112 and R v XY [2013] NSWCCA 121.
11. One of the key issues in the determination of the appeal was analysing the conflict between Dupas and Shamouil as to the power of a trial judge in determining the admissibility of the evidence to consider the reliability or credibility of the evidence. Their Honours, after discussing the significance of s 55 and the importance of determining what the facts in issue are relevant to the admissibility and tendency evidence said, at [39]: "The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by the trial judge on the assumption that the jury will accept the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may, of course, be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case, its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criteria of relevance."
12. I interpose to say here that it is self evident and it was not argued otherwise by learned counsel for the accused, that it could not be held in any rational way that the evidence of Mr Van Zwam, as far as it goes, noting its very limited implication of the accused, was, in fact, "incredible, fanciful or preposterous."
13. Their Honours went on to say , at[40]: "Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is "probative". Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, "probative". But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is in common law."
14. Their Honours turned their attention then to s 97(1)(b) and s 137 of the Act. They referred to the Dictionary definition of "probative value", earlier cited in the Act. That definition states: "'Probative value" is 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.'"
15. Their Honours further said (at [44]): "The assessment of the "extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put requires that be a possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b) the inquiry is whether the probative value of the evidence may be regarded as significant."
16. Their Honours pointed out that, at [45]: "The use of the term "'probative value" and the word "extent" in its definition rests upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a higher degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference when considered in conjunction with other evidence. The evidence if accepted may establish a sufficient condition for the existence of the fact in issue …. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of facts in issue are various within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge."
17. Their Honours cited excerpts from "Cross on Evidence", and also a speech made by The Honourable JD Heydon QC, relating to the role of the judge in relation to the assessment of the probative value of evidence. Their Honours said that: "Significant probative value is a probative value which is 'important' or a 'consequence'. The significance of the probative value of the tendency evidence...must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which the evidence may have in establishing those facts. So understood, the evidence must be influential in the context of the fact finding." (at [46]).
18. Their Honours said at [47]: "In comparison, the requisite probative value of the evidence is not spelled out in s 137. It requires the "'probative value" of the evidence to be weighed against the danger of "unfair prejudice" to the defendant. This again requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue."
19. Their Honours pointed out, at [51], that: "At a practical level...it could not be intended that a trial judge undertake an assessment of the actual probative value of the evidence to the point of admissibility. As Simpson J pointed out in R v XY, the evidence will usually be tendered before the full picture can be seen. A determination of the weight to be given to the evidence, such as by reference to its credibility or reliability, will depend not on on its place in the evidence as a whole but on an assessment of witnesses after examination and cross examination and after weighing the account of each witness against each other."
20. There were other observations made in the further consideration of the issues on appeal. Their Honours went on to do an assessment of the probative value of the evidence for admissibility purposes on appeal and interestingly enough, although it is not of significance in this matter, they pointed out that in the case of "tendency evidence" coming from a complainant who is the source of allegations of sexual assault the subject of a trial, bearing in mind the probative value of the evidence lies in its capacity to support the credibility of the complainant's account, the requisite degree of probative value is "most likely" not to exist. That is not to say the complainant's unsupported evidence can never meet the test, but the evidence would have greater probative value if coming from an "independent source".
21. In respect of the issue of significant probative value, of course, I note observations prior to IMM in decisions such as Lock, from 1997, and R v AW, from 2009, which are not inconsistent with the discussion of that aspect of the matter by the High Court, particularly the observation of Latham J in AW that: "The evidence must have significant probative value; that is, it must be evidence that it meaningful in the context of the issues at trial. The provision is concerned with the quality of aspects of the evidence and not quantity. It must be more than merely relevant …. The question for the trial judge was whether the evidence was important in establishing the facts in issue." (R v AW [2009] NSWCCA 1, at [47])
22. With regard to matters that might militate in favour of tendency reasoning, there are a number of authorities that point to situations such as the number of occasions when particular conduct occurred which is relied upon, the time gap between particular conduct and, to quote from Mr Odgers' text: "The degree of similarity between the conduct on the various occasions (including the conduct sought to be proved)."
23. With regard to s 101 of the Act, particularly in relation to the determination of whether probative value substantially outweighs any prejudicial effect, highlighting some remarks of the High Court in IMM about coincidence evidence, it was held in New South Wales in the decision of Ellis, (2003) 58 NSWLR 700, by the majority, that s 101(2): "Calls for a balancing exercise which can only be conducted on the facts of each case. The Court must give consideration to the actual prejudice in its specific case which the probative value of the evidence must substantially outweigh."
24. At [94] of that judgment it was held that the reasoning in R v Pfennig ((1995) 182 CLR 461) involving a more restrictive rule of admissibility; that is, the basis for the admission of similar fact evidence as it was called in common law, lies in his possessing a particular probative value or cogency such that if accepted it bears no reasonable explanation other than the inculpation of the accused in the offence charged does not apply to the balancing exercise under s 101(2). However, it was pointed out by Spigelman CJ, at [96], that: "It should not be understood that the stringency of the approach culminating in the Pfennig test 'is never appropriate when the judgment for which the section calls has to be made. There may well be cases where on the facts it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the 'no rational explanation' test was applied."
25. These various matters obviously I have had close regard to in determining the matters available for consideration.

SUBMISSIONS

1. With regard to the submissions of the parties they appear to be, as I understood, in agreement that for admissibility purposes the Court was concerned with the capability of the evidence to establish matters to satisfy particular tests of relevance, significant probative value and the like. That is the law in any event.
2. To crystallise the essence of what was put on behalf of the accused by his learned counsel, it was conceded, as I understood it, that there was relevantly an "interconnectedness" between the accused and Niko and/or Van Zwam, at least for the purposes of admissibility through the material that had been seized from the mobile phone records or contact details of the accused and Van Zwam and other documents in the possession of the accused within the folders of his computer. It was also clear, it was conceded, that there were representations made by the accused in the 'Word' documents that could be accepted as admissions of knowledge on the part of the accused relevant to the travels of Mr Van Zwam and Niko, as well as admissions against interest in respect of his own travels, particularly his travels to Australia.
3. It was a concession made in the course of submission that there was a great deal of evidence created by the accused, in either emails or text messages, 'Word' documents and the like, establishing "a lot of connection" supportive of aspects of the account made by Mr Van Zwam. It was conceded, and it must be conceded, that the accused has recorded representations identifying himself as "Lamin". There was clear evidence of the accused bringing a "bag" or luggage into Australia and admitting, particularly in one of the Word documents, as to what happened in relation to that bag. The accused knew about Van Zwam and Niko and their travels. It was conceded that the capability of that evidence to establish some facts in issue was shown.
4. Ultimately it was submitted in a general way, without any particular criticism of the submissions, that I would still be concerned, in relation to the evidence of events occurring in Sydney in March 2013 and also as to the alleged travel to Indonesia in May/June 2013, as to the probative value of the evidence and whether it had the relevant 'significant probative value', or whether it had a value in that sense outweighed by its prejudicial effect.
5. The Crown's submissions supplemented the written submissions to which I have earlier made reference. The specific submissions within the Crown's 'Submissions' prepared last year, I assume prepared by another counsel, are set out at paras 15 to 19. The Crown in those submissions, in relation to the material that is identified within the document, states that: "Documents, emails and text messages supported the contention of the Crown that the accused had the relevant tendency to act in a particular way; that is, to transport drugs/contraband from one country to another and deliver it up to a designated contact."
6. I pause for a moment to suggest that written submission overreaches the reality of the evidence that is available to me on the voir dire. Whilst I accept that it may be material that supports a contention of a tendency to act in a particular way; that is to import, to use the word in the Notice, a "substance" (that is, "goods"), the inference in relation to transporting "drugs" is not so clearly drawn.
7. Reference is made to the "Word" documents and admissions therein made by the accused about his own conduct. The evidence indicates, and it is submitted, that far from the accused being an "innocent abroad", he was operating within an organised framework with contacts and a supervisor, as well as other couriers. The conduct of those other occasions being the same as now in issue it is submitted.
8. It is interesting to note that when one analyses these written submissions, I am not going to quote them all, that the concentration of the written submissions is not on what Mr Van Zwam says, or the admissibility of Mr Van Zwam's conduct or Niko's conduct such as it can be proven or is available to be established from evidence that the Crown may lead, it appears to be principally concerned with representations made by the accused against interest or actions of the accused at the relevant times. It quite clearly must be the case, I say in passing, that that material relied upon by the Crown in its written submissions has a greater probative value than that relied upon from the actions and intentions of other people, even people known to the accused.
9. The oral submissions of the learned Crown started off by concentrating upon the Indonesian aspect of the matter. It was, to my mind, and I will analyse this in a moment in greater depth, far less "convincing" evidence than other evidence sought to be relied upon by the prosecutor to establish a relevant conduct or state of mind on the part of the accused. Be that as it may, the Crown and I have had some discussion about that, and the Crown pressed that aspect of its matter. I have taken that position into account.
10. It was conceded in the course of submissions, given orally by the learned Crown, that the Crown's contentions in relation to the matter of "tendencies"; that is, the tendency to act in a particular way and/or to have a particular state of mind, were stronger in relation to the contention of the accused acting in a particular way, than that of having a particular state of mind, as identified in the Notice.
11. In the context of dealing with the evidence of Mr Van Zwam and noting the other evidence, some circumstantial, linking the accused to the identity of Lamin, and that person's common contacts with Alex and John, as well as Van Zwam and Niko, the Crown says the evidence has significant probative value as to the contention of the accused to act in a particular way.
12. It was submitted that the accused's travel in March 2013 was clearly connected to that of Van Zwam and Niko, and that both that body of evidence and the evidence of what the accused himself did in March 2013, relevantly had significant probative value that substantially outweighed any prejudicial effect and was admissible otherwise by regard to s 137 of the Act. The Crown, in its oral submissions, pressed the admission into evidence of the entire body of evidence that had been produced on the voir dire relevant to those areas that I identified in the first part of my judgment.

CONSIDERATION

1. The matter I did not specifically discuss with the parties but it seems apparent from the material, as I understand it, was the precise character of the "facts in issue" in this matter. I believe, however, I can fairly state what I understand to be the facts in issue, particularly from the perspective of the Crown. The facts in issue, as I understand them, posing those matters as questions are these (not in any order of importance, but taking them one by one): (i) was the suitcase delivered to the accused's room at the hotel in Sydney on 25 October immediately before his arrest the same suitcase that the accused intended to bring into Australia when he arrived on 22 October 2013? (ii) had the accused, by bringing that suitcase into Australia, or causing it to be brought into Australia, "imported a substance"? (iii) was the accused intending to deliver any substance within the suitcase to another party, either by handing over the suitcase or by removing the secreted contents for payment of money to him in Australia or otherwise? (iv) at the time of the accused's arrival in Australia, did the accused know, or was he reckless to the fact, that he was importing a border controlled drug? (v) or did the accused know that the suitcase that he had checked into the airline luggage system contained a border controlled drug?
2. I pause for a moment to point out that the Crown charges the accused, as I understand it, pursuant to s 307.1 Criminal Code. The Crown alleges, pursuant to that provision, the accused committed an offence by importing a substance and the substance was a border controlled drug. The fault element in relation to this alleged offence is "recklessness".
3. In relation to Div 5 of the same Act, s 5.4 states in relation to "recklessness": "(1) a person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist and, (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) a person is reckless with respect to a result if: (a) he or she is aware of the substantial risk that the result would occur and, (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk."
4. Subparagraph (3) provides that the question whether taking a risk is unjustifiable is one of fact. If recklessness is a fault element for a physical element of an offence, proof of intention or knowledge or recklessness will satisfy the fault element.
5. The facts in issue that I have identified in the form of questions, some overlap of course, are relevant, pursuant to s 55 of the Act. Not just to the matters requiring proof by the prosecution but, in my mind, also relevant to rebut any potential claim by the accused that, for example, the accused delivered to him on 25 October was not his, not the one that he had checked in to bring into Australia, or alternatively, that there had been some form of third party intervention or interference with the suitcase between the time that baggage was checked into the airline luggage systems and the delivery of the suitcase to his hotel room (a period something in the order of three days) and/or that the accused knew that he had a substance in the suitcase, but he believed it to be one that he could legally bring into Australia but not declare in his Incoming Passenger Card.
6. In this matter, it is not a fact in issue that the accused brought border controlled drugs into the country on 16 March 2013. The accused has not been charged with that. I make the observation that he obviously has not been charged with that because it would be impossible to prove beyond reasonable doubt, as there is no evidence as to what was in the bag that he admitted in subsequent communications to have had in his possession and handed to another person at that time. The matter of what he imported is incapable of proof beyond reasonable doubt.
7. If the accused was charged with that, based upon the evidence of the actions of Niko and Van Zwam, one would have thought that evidence would be more significant in its probative value by use of a coincidence reasoning pursuant to s 98 of the Evidence Act.
8. It is important to note in the context of the consideration of the issues here that, pursuant to s 97, it is "the tendency of the accused to act in a particular way, and/or have a particular state of mind" that is ought to be established by the evidence the subject of the tendency notice (emphasis added). The actions of others and their state of mind, in this matter, have lesser probative value.
9. Having regard to the fact that no application is being made to amend the Notice, a matter submitted upon by learned counsel for the accused, the issues for determination, one would have thought, are reasonably constrained by the Notice that has been filed. Not that it makes a great deal of difference, if any, to the outcome of this application.
10. Noting what has been referred to and summarised before concerning the legal issues in the material available to the Court, in the context of the myriad of factual matters relating to the circumstances of the arrest investigation of Niko and Van Zwam, persons established, as being known to the accused, and dare I say, "related" in a transactional sense, the fact that they acted in a particular way, or had a particular state of mind, is relevant, but in my view does not have the "significant probative value" in determination of the facts in issue in this matter when there is in my judgment no evidence that the accused knew relevant facts concerning the conduct of those other persons consistent with the allegations brought against him. That is, that those persons imported a "substance" and either they knew, or they were reckless to the fact, that the substance was a border controlled drug.
11. The evidence of Mr Van Zwam established his actions and state of mind, as well as his connectedness with the accused. But none of his evidence establishes any relevant admission by the accused of relevant knowledge, or recklessness, on his part, nor any relevant participation by the accused in discussions as to the criminal enterprise that existed as between Niko, Van Zwam, Tony, Alex or any other contact they had in the Gambia or the Ivory Coast.
12. There is a common connection through the person who was organising travel to Australia in the Ivory Coast, and there is evidence from Mr Van Zwam in his statement of discussions with the accused about travel to Australia, but that falls short of what I hold is basic to established "significant probative value" in the way the Crown contends the evidence that Mr Van Zwam and related matters may have in establishing the tendencies alleged against the accused.
13. The various "ex post facto" statements or representations of the accused to be identified from text messages, or Facebook entries or Skype messages, but particularly the three 'Word' documents that I have referred to, cannot, by reason of their lack of relevant contemporaneity, reasonably establish any admission of relevant knowledge by the accused of the state of mind, or actions, of Niko and Van Zwam at the time that the accused entered Australia on 16 March, or when he entered Australia on 23 October 2013. That is particularly a relevant admission by the accused that he knew or believed that the others were bringing a substance into Australia, and that they knew or were reckless to the fact that it was a border controlled drug.
14. There is no evidence that the accused knew that they believed that they were importing "crushed gold", although there is an inference that he may have understood that to be the case. These are their respective claims. This is matter also to be borne in mind in assessing, for example, the probative value of Mr Van Zwam's evidence as to particularly what his state of mind was, and whether he was relevantly reckless or not is relevant matters.
15. Given the other evidence of 'connectedness' of the accused with Niko and Van Zwam, it would seem, with respect to the Crown's position, that the greater probative value of the relevant evidence relied upon by the Crown relevant to proof of guilt of the accused would be by the use of "coincidence" reasoning rather than "tendency" reasoning. Whether it would necessarily have the significant probative value for that purpose is not a matter I need consider. It certainly does not have significant probative value in order to establish what is required or to be a relevant tendency in proof of the Crown case because what the prosecution is seeking to rely upon are the actions and states of mind of others to establish the relevant tendencies particularised of the accused.
16. This is the very reason, obviously, that the Crown conceded that its claim in relation to the tendency of the state of mind of the accused was the weaker claim of the Crown.
17. It is important to note that the Crown case against the accused, either by reference to the evidence sought to be adduced for tendency purposes concerning Niko and Van Zwam, or in relation to the matter for which the accused is to be tried, is not that the accused was part of a joint criminal enterprise to commit a specific crime with Niko or Van Zwam. For example, if the accused did import a border controlled drug into Australia in March 2013, the bare facts, as I would understand it, speak of the accused's actions being concerned with a criminal enterprise, perhaps connected, but in a legal sense quite separate and requiring quite separate charging to the criminal enterprise or enterprises in which Niko and Van Zwam were allegedly involved. In fact, even though Niko and Van Zwam came to Australia together, they were respectively involved in what might be thought to be two separate criminal enterprises. One involving what Niko was seeking to import into Australia in the suitcase that was his and then what Van Zwam was seeking to import into Australia in the suitcase that he said was his.
18. The alleged conduct and/or state of mind of the accused in March 2013 was separate from that of those men because it is involved actions and a relevant state of mind existing at a separate time to the actions and relevant state of mind giving rise to criminal liability for those two other men.
19. The accused's subsequent representations in May/July in the Word documents, in relation to matter of recruitment or the like, or speculating as to the fate that had befallen Niko and Van Zwam, disclose on the part of the accused not a complete knowledge of the fate that befell those men and the surrounding circumstances in its terms. Certainly, as I said earlier, in my view it cannot reflect a relevant knowledge by the accused at the time the accused came to Australia between 16 and 19 March 2013.
20. There is no evidence from Mr Van Zwam that reflects an admission by the accused against interest in respect of the accused's knowledge of the purpose of Van Zwam's and Niko's impending visit to Australia at the time the accused left their presence on 14 March 2013. Nor is there an admission by the accused of knowledge of them importing border controlled drugs or an admission on the part of the accused of an understanding that they thought they may have been importing "crushed gold". Of course, there may be some inferences available in this respect, but there is no evidence that the accused was present at the time of specific discussions identified by Mr Van Zwam when specific matters of detail relating to what was to occur transpired between Alex and Tony as I earlier pointed out.
21. There were discussions about the proposed trip to Australia. The accused made admissions against his own interests, so to speak, of travelling to Australia. That matter is not in dispute at all. It is clearly established that he did travel to Australia, arriving on 16 March 2013.
22. Even if the evidence of those matters arising from the evidence of Van Zwam and related to the activities of Van Zwam and Niko, as well as arising from the other material that has been tendered, had significant probative value, I would exclude that evidence, exercising the power available pursuant to either s 101(2) and/or s 137 of the Act. I appreciate these two provisions are to be considered separately. There are a number of reasons for this. The fact that the other men were allegedly in possession of border controlled drugs, but involved in a separate criminal enterprise, obviously would be greatly "prejudicial" to the accused in the manner that is understood, for example, pursuant to s 101. That is not a reference to "unfair prejudice", as arises in relation to s 137.
23. The risk of establishing guilt by association would be great. There would be a great deal of difficulty, in fact it would be impossible, to remove the risk of that contaminating a jury's fair consideration of the matter. But there is another aspect of this matter that concerns me. In the context of considering s 101(2), and more particularly s 137, the accused would be required to conduct the matter on the basis of there being within his trial a retrial of the issues relevant to the proof of guilt of Mr Van Zwam and Niko in circumstances where Niko had been acquitted and was not available to give evidence and Mr Van Zwam had pleaded 'guilty', but was still asserting a state of mind that might be inconsistent with his plea of guilty.
24. The examination of their respective criminal responsibilities, for which this accused is not liable, would run a high risk of overshadowing the real issues to be decided in this case, complicated by the fact that, as I said, the only witness available to be tested as to any version he could give that might be relied upon to implicate the accused concerning his own liability or state of mind, could be seen as asserting a version inconsistent with a plea of guilty.
25. Thus, I have concluded that the evidence of the recruitment, interception and subsequent dealings of investigators with Niko and Van Zwam is inadmissible. Evidence of what was in their possession; that is within the suitcases they brought into the country, is inadmissible. I say in passing, just standing alone, any claimed similarity between what they possessed and what the accused is alleged to have subsequently possessed in October 2013 to my mind has more relevance as evidence of "coincidence". Although I am not indicating that I would have concluded that it was admissible, having
26. regard to the fact that I need to determine significant probative value and then determine the operation of s 101 and s 137.
27. Evidence of any admissions by the accused concerning their whereabouts or their fate is otherwise inadmissible. I note, as I said, the concession made in relation to the matter by the Crown in the course of submissions. In respect to that matter in discussing the matter with the learned Crown Prosecutor, he said at p 141/16: "As to whether he is reckless into the second tendency that is sought; that is, whether or not he was reckless as to whether so whether he had a tendency to have a state of mind as to be reckless, I think I must concede that that is more difficult to prove (sic)."
28. However, the evidence of the accused's travels to Australia in March, his entry to Australia and the like, any relevant admissions made by the accused, by communication, or within Word documents, as to his actions and states of mind clearly have significant probative value in the context of establishing at least the first tendency sought to be claimed by the Crown in respect of the conduct of the accused. The issue of how this evidence reflects upon his state of mind, so to speak, the second aspect of tendency raised by the Crown, I have not concluded.
29. This aspect of the matter I must say was scarcely argued on behalf of the accused. I do not criticise learned counsel for her skilful submissions. But the way in which the matter was treated had all the evidence lumped together. As I said at the early part of my judgment, there are different considerations in relation to different pockets of evidence.
30. In any event, I have concluded that this particular evidence, being directed at prior conduct of the accused himself and the prior state of mind, so far as it goes of the accused himself, substantially outweighs the risk of prejudice to the accused, as I have identified in relation to evidence concerning the conduct and states of mind of other people. Likewise, in respect of s 137 the risk of "unfair prejudice" is outweighed by the probative value of the evidence, unlike the evidence sought to be relied upon from Mr Van Zwam and related material. This is a matter that can be properly dealt with by appropriate direction. It is assumed, of course, in the scheme of the Act that evidence of tendency that is admissible has a potential to be prejudicial. But that prejudice would have to be considered in the context of appropriate directions being given to the jury, not only about the use of the evidence but also about the misuse of the evidence.
31. At the very heart of the consideration of "prejudice" or "unfair prejudice", as they might arise under the relevant provisions of the Act concerning the other body of evidence I have excluded, was the fact that it was impossible in my view to remove the relevant risks, or realities, of misuse of the evidence by the jury (eg.Yates [2002] NSWCCA 520 (at [252]).
32. In relation to the evidence to be sought to be adduced by the prosecution, I thus admit evidence of the accused's trip to Sydney and the representations made by him subsequently about that trip. I have not dealt in detail the significant of the accused's possession of the Dell computer, but the voir dire proceeding proceeded on the assumption that the relevant extracted material, either from mobile phones or the computer, were within this possession and can reasonably be concluded to have been created by him, or received by him, at relevant times. I have already commented upon the effect of the evidence given at the previous trial about that matter during a judgment on an application for a verdict by direction.
33. There may be other parts of the evidence, such as the contact details on the accused's mobile phones or other matters arising from folders within his computer in relation to names referred to in other documents created by the accused that are relevant to understanding the circumstances of his travel to Australia in March 2013 that will need to be admitted.
34. With regard to the other major outstanding matter in my view; that is, the issue of the accused's travel to Indonesia and the reference to the accused providing a suitcase to another person in Indonesia, accepting for the moment that it was relevant to at least the first of the tendencies pleaded by the prosecution in its Notice, the details of the evidence in relation to this particular trip and the character of the transaction or transactions that occurred within Indonesia, both by reference to objective evidence and certainly having regard to the accused's representations, is much vaguer and much more gap ridden than the details available in relation to the accused's trip to Australia in March 2013. In fact, the surrounding detail is so infected by gaps and the representations of the accused so incomplete as to deny the evidence in relation to that particular trip by the accused any significant probative value as required under s 97 of the Act.
35. Again, even if this evidence could be said to have significant probative value, considering "prejudice" pursuant to 101(2), in my view it would require, if to be acted upon the jury for tendency purposes, a great deal of speculation on the jury's part rather than the simple and proper drawing of inferences in respect of the evidence of the trip which is what ultimately the Crown would seek to do or cause the jury to do. The drawing of inferences is proper, but this is, as I have said, a body of evidence that is replete with deficiencies.
36. Apart from the fact that they diminish the probative value of the evidence, it is clearly the case that there is a risk of prejudice, pursuant to s 101, which is not outweighed substantially by the probative value of the evidence. Certainly, pursuant to s 137, the real risk of unfair prejudice outweighs that probative value as provided for in that section.
37. With regard to the issue of 'context', again, this was a matter spoken about but barely adverted to, both in the written submissions of the Crown and in the oral submissions of both parties. It seems to me, with the greatest of respect, that understanding as best I can what could be contextual about the conduct, for example, of Mr Van Zwam and Mr Niko and/or the accused's travels to Indonesia, the probative value in a contextual situation is slight. Again, for contextual purposes, the risk of "unfair prejudice" or the actuality of unfair prejudice in terms of s 137 is substantial. Thus, that evidence I have otherwise excluded I would not permit to be admitted for "contextual purposes".
38. It may be said, of course, that in relation to the ruling I have made about the accused's own travel being admissible for tendency purposes, that even if I was to rule against the Crown in that sense, it could clearly serve some contextual purpose if it was not otherwise admissible for tendency purposes.
39. To permit evidence that is not admissible, particularly having regard to potential or real prejudicial effect, to be admitted on another basis would not defeat that prejudice which has been identified in the judgment.
40. Thus, as I foreshadowed to the parties, I will admit into evidence the relevant evidence to the circumstances of the accused's own trip to Australia and subsequent admissions or representations or documents created by the accused pertinent to that particular trip. Obviously some material has been provided to me which provides a context to the circumstances of the accused's travels in October to Australia. There does not seem to be any dispute that there are matters arising from representations made by the accused before he came to Australia, some of them may construed as admissions, that are clearly relevant and admissible being directly concerned with the circumstances of events that give rise to the charge that the accused must face at his trial.

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: 30 October 2020