Criminal Law - evidence - tendency evidence - admissibility and relevance - conduct subsequent to charged conduct as evidence of tendency.
Legislation Cited: Criminal Code (Cth) 1995
Evidence Act 1995
Cases Cited: Harriman v R (1989) 167 CLR 590
R v Quach (2002) 137 A Crim R 345
Gilbert v The Queen (2000) 201 CLR 414
Source
Original judgment source is linked above.
Catchwords
Criminal Law - evidence - tendency evidence - admissibility and relevance - conduct subsequent to charged conduct as evidence of tendency.
Legislation Cited: Criminal Code (Cth) 1995Evidence Act 1995
Cases Cited: Harriman v R (1989) 167 CLR 590R v Quach (2002) 137 A Crim R 345Gilbert v The Queen (2000) 201 CLR 414
Judgment (3 paragraphs)
[1]
Solicitors:
Mr A Powell - CDPP
Ms M Tran - Greenfield Lawyers
File Number(s): 2012/310032
[2]
Judgment
By an indictment presented on 20 October 2015, the accused, Tien Thieu, is charged contrary to section 302.3(1) of the Criminal Code (Cth) with one count of trafficking a marketable quantity of a controlled drug, namely 449.3 g of pure paramethoxymethamphetamine (also known as PMMA) in a total admixture of nearly 1 kg of white crystalline powder.
The Crown alleges that the accused, and his brother Van Son Thieu (who I will refer to in these reasons as VS Thieu), were associates of a Melbourne based drug-trafficking principal named Suky Lieu. Suky Lieu's trafficking enterprise involved numerous other persons, located in Melbourne, Sydney and also in Hong Kong.
Through telephone and other contact with his Hong Kong contacts, principally an individual referred to in the transcripts of intercept material only as "John", Suky Lieu was able to obtain access to various types of controlled drugs that were available from time to time in Sydney and make arrangements for their subsequent transportation from Sydney to Melbourne. The Crown alleges that Suky Lieu and John used a particular modus operandi or method to further their enterprise. When John had drugs available in Sydney and they were required by Suky Lieu in Melbourne, Suky Lieu and John would arrange for one or more of Suky Lieu's Melbourne associates to travel to Sydney in order to meet with one or more of John's Sydney associates, whereby the drugs would be collected and then transported back to Melbourne for intended further distribution or sale by, or on behalf of Suky Lieu.
The charge against the accused concerns one instance of alleged trafficking in controlled drugs undertaken by Suky Lieu using the above-mentioned modus operandi. In particular it is alleged that the accused, and his brother, VS Thieu:
travelled from Melbourne to Sydney at the direction of Suky Lieu in order to receive a quantity of drugs that were intended for further sale and distribution through Suky Lieu's trafficking enterprise; and
met in the vicinity of Bankstown with associates of John; and
collected a bag containing approximately 1 kg of white crystalline powder, which upon analysis was found to contain 449.3 g of pure PMMA.
The Crown alleges that the accused trafficked the illicit drug by transporting and/or guarding the substance. It is alleged that in doing so he knew, or was at least reckless to the fact, that the substance was some type of controlled drug. It is also alleged that he intended that at least some of the substance was intended for future sale by a person.
The Crown case against the accused is circumstantial. The evidence sought to be adduced in respect of the incident the subject of the charge is principally in the form of telephone intercepts and physical surveillance evidence.
In proof of the charge, the Crown also seeks to adduce evidence of other facts, circumstances and events. A large part of this additional evidence is also in the form of telephone intercepts and physical surveillance evidence. Some of it concerns other alleged instances of trafficking by Suky Lieu and some of it concerns alleged, indeed admitted, instances of trafficking on the part of the accused. In respect of the latter, the accused has already served a sentence imposed upon him by the County Court in Victoria.
The Crown relies upon this additional evidence in proof of the charge against the accused on the basis that it is relevant and admissible evidence as either circumstantial evidence or, at least in respect of the evidence of the Victorian offences, tendency evidence. That latter evidence is the subject of a tendency notice dated 19 October 2015, which amended in largely insubstantial respects a notice dated 6 April 2015. No objection is taken to the effect that the period of notice is unreasonable.
The accused objects to the admission of any evidence concerning other instances of alleged trafficking, either by Suky Lieu or the accused himself and objects to the tender of any intercept material that does not involve the participation of the accused.
The objections to the tender are put on a number of bases. Those objections can be broadly summarized in the following way. First, it is submitted that the evidence is not relevant and is therefore inadmissible. Second, insofar as the evidence may be relevant and prima facie admissible as nontendency circumstantial evidence, it is submitted that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused and therefore it must be excluded under s 137 of the Evidence Act 1995. Third, in respect of the evidence relied upon for a tendency purpose, it is submitted that it ought not be admitted on the bases either that it does not have significant probative value (as required by s 97 of the Evidence Act) or, alternatively, the probative value of the evidence does not substantially outweigh its prejudicial effect (in accordance with the balance prescribed by s 101 of the Evidence Act). Finally, as I understand the submission, it is submitted that all the intercept material is inadmissible on the basis that it is hearsay.
For the purposes of argument on the voir-dire the Crown prepared a Crown Case Statement of some 190 closely typed pages. It provides, among other things, a comprehensive recitation of the material outlining the "uncharged" facts, events and circumstances the Crown seeks to rely upon as circumstantial evidence in proof of facts in issue on trial of the accused on the sole count on the indictment.
The Crown categorized the evidence sought to be relied upon at trial by reference to particular periods of time, and events, described in the following way:
The first period concerns a trafficking incident on 6 and 7 April 2012;
The second period relates to an uncompleted attempted trafficking between 13 and 23 June 2012;
The third period, concerns the charged trafficking transaction and relates to the period 24 June to 2 July 2012;
The fourth period covers the dates 2 July to 11 September 2012 and relates to certain events and communication subsequent to the arrest and charging of the accused and his co-accused;
Finally, the fifth period relates to the time between 29 October 2012 and 27 June 2013 and concerns subsequent admitted trafficking by the accused whilst on bail.
I did not understand there to be any particular issue as to the division of the material in that way. The controversy, for present purposes, concerns the admissibility of the material which each of those categories represents. The third period, if I have correctly understood the submissions put on behalf of the accused, is subject only to the hearsay objection.
In very broad summary, the first period, the 6-7 April trafficking period involved the following matters. Initially, Suky Lieu made arrangements for an associate to travel from Melbourne to Sydney in order to receive methamphetamine from one of John's Sydney associates. Suky Lieu had initially sought that the accused's brother, VS Thieu and/or another man, Minh Phuoc Nguyen Huynh, carry out this task. As VS Thieu was ultimately unable or unwilling to travel to Sydney, Suky Lieu used Huynh, to travel to Sydney to collect the drugs. Using a vehicle borrowed from Suky Lieu, Huynh, accompanied by his wife and children, drove from Melbourne to Sydney to a house at Eastwood, NSW, where Huynh collected the drugs from an associate of John. On the return trip home police intercepted the vehicle near Broadford, Victoria. Police searched the vehicle and found a child's backpack in the rear of the vehicle, which contained 6 silver coloured packages, each containing a crystalline substance. Subsequent testing confirmed the substance to be a total of 4.4718kg of pure methamphetamine. Huynh was arrested and charged. Following the interception and arrest of Huynh, Suky Lieu attempted to find out what had happened with his courier and asked VS Thieu to do various things to find out what had occurred. VS Thieu eventually confirmed that Huynh had been caught by police.
The second period, the uncompleted trafficking in June 2012 can be broadly summarized in the following way. Suky Lieu and John discussed the details of the interception and arrest of Huynh in April and arranged for the further supply and collection of drugs in Sydney. At Suky Lieu's direction, VS Thieu travelled to Sydney and checked into a motel to await the handover of the drugs. After waiting for a time, the proposed handover did not eventuate and VS Thieu returned to Melbourne. Whilst VS Thieu was in Sydney, the accused communicated with VS Thieu concerning the making of arrangements for VS Thieu's return to Sydney and also communicated with Suky Lieu about various things relating to VS Thieu's presence in Sydney and about picking up money from one of Lieu's other associates.
In summary, the trafficking alleged in the indictment, which is the subject of the third period referred to above, involved the following sequence of events, on the Crown case.
Suky Lieu and John arranged for the further supply and collection of drugs in Sydney. At Suky Lieu's direction VS Thieu and his brother, were to fly from Melbourne to Sydney, and to make arrangements to meet with John's associate, Hoang Phuong Vu Le (who I will refer to simply as Le), and collect the drugs from him. Initially, VS Thieu arranged with Le to meet on 1 July 2012. The accused and VS Thieu were both booked to travel to Sydney by plane on that date, however they missed their flight and were unable to obtain another that day. VS Thieu communicated this circumstance to Le. The accused communicated that circumstance to Suky Lieu. Following discussions with Suky Lieu, VS Thieu arranged to meet with Le in Sydney on 2 July 2012. The accused and VS Thieu travelled to Sydney by plane on that date. When they arrived in Sydney on 2 July 2012, VS Thieu rented a hire car to be driven by the accused and the accused then drove them to Bankstown. Once there, VS Thieu initially met with Le at the "Pho An" restaurant whilst the accused remained in the hire car. Arrangements were then made for VS Thieu and Le to each to return to Bankstown later that day for the completion of the intended transaction. In the interim, VS Thieu was in contact with another man, Jamie Harris (Harris), and they arranged to meet in Burwood. After the initial meeting between Le and VS Thieu, the accused and VS Thieu drove to Burwood, picked up Harris and then returned to Bankstown. They parked in a multi-storey carpark near the Bankstown Sports Club. While waiting for Le to return to complete the handover of the drugs, the accused, VS Thieu and Harris went together to a restaurant and then to the Bankstown Sports Club.
Le subsequently contacted VS Thieu and the pair arranged for the handover of the drugs to occur in the multi-storey carpark. Le arrived at the carpark in his own vehicle, from which he removed a red, blue and white striped bag. VS Thieu left the other two at the club and met Le in the stairwell of the multi-storey carpark. He took possession of that bag from Le and placed it in the rear of the hire car. Immediately thereafter, the accused and Harris left the Bankstown Sports Club and returned to the carpark. All three got back into the hire car, with the accused as driver, VS Thieu as front passenger and Harris as rear passenger. Police intercepted the vehicle on a suburban street in Bankstown not long after it had left the carpark. Police searched the car and found the red, blue and white bag inside Harris' backpack on the backseat. The accused, VS Thieu and Harris were arrested and charged. The red, blue and white bag contained approximately 1 kg of a white crystalline substance, which was later analysed and found to contain 449.3 g of pure PMMA.
The fourth period, involving events immediately following the charging of the accused and his co-accused, is broadly summarized in the following way.
After the interception and arrest of the accused, VS Thieu and Harris, Suky Lieu and John again sought to find out what had happened with the supply and collection of the drugs. Suky Lieu and John engaged in numerous coded telephone conversations in which they discussed what had happened and speculated about the cause of the interception and arrest of their associates (and the fact that Le was not arrested). They also continued to discuss future arrangements for trafficking. On 18 July police executed a search warrant at 13 Albatross Avenue, Hinchinbrook, being the residence of John's associate, Anh Thai Pham. The residence was used as a safe house for storage of illegal drugs. Le had attended the residence in the past and had communicated with Pham in order to arrange for the collection of the drugs that were supplied during the 2 July trafficking incident. Police located controlled drugs and other drug trafficking paraphernalia at the residence. On 27 July 2012 police executed a search warrant at 5/79-81 Cambridge Street, Canley Heights and also over a vehicle that had been driven by Le on 2 July 2012. Le was present at the time and was arrested. Police located a sim card that had previously been used to make contact with Pham.
As to the final period, involving subsequent trafficking by the accused in the period late October 2012 to June 2013, intercepted telecommunications between the accused and other persons, including Suky Lieu, demonstrate that after being released on bail for the charged trafficking incident, the accused engaged in trafficking of heroin and ice or other amphetamines in Melbourne. The accused pleaded guilty, was sentenced by the County Court of Victoria in relation to that offending conduct and has since served his sentence.
The elements of the offence charged on the indictment, that the Crown must prove beyond reasonable doubt are as follows.
First, that the accused trafficked in a substance. The Physical Element is conduct, informed by the definition of "traffics" in s 302.1. The Fault Element is Intention.
Second, the substance seized is a "controlled drug". The Physical Element in this respect is Circumstance. The Fault Element is relevantly Recklessness.
Third, that the quantity of the controlled drug was a "marketable quantity" The Physical Element is again Circumstance, the Fault Element is Absolute Liability.
According to the applicable definition, a person "traffics" a substance if the person either transports the substance with the intention of selling any of it or believing that another person intends to sell any of it or guards or conceals it with the intention of selling it or assisting another person to sell any of it. Where the amount of the substance exceeds the prescribed "trafficable quantity", there is a (rebuttable) presumption that the accused had the necessary intention or belief concerning the sale of the substance.
It appears that the, or certainly one of the, critical issues at trial will concern the accused's state of mind at the relevant time. The elements of the offence reveal two critical aspects to the requisite state of mind, which the Crown must establish beyond reasonable doubt. Relevantly, they are, first, whether he "knew'' (or more aptly was reckless as to the fact) that the backpack located in the hire car contained a substance that was a controlled drug and, second, whether he intended to transport, guard or conceal the substance with a view to it later being sold by him or some other person.
The accused was spoken to by police at the time of his arrest and also later took part in a recorded interview. During the post arrest conversation with police and in his interview the accused effectively denied any knowledge of the drugs that were found in the backpack and also claimed that he had only come to Sydney with his brother for a visit.
In broad terms, the Crown contends that the contested evidence it seeks to adduce is relevant and admissible as non-tendency circumstantial evidence. In that respect it relies in particular upon the decision of the High Court in Harriman v R (1989) 167 CLR 590 and a line of cases that follow from it, including R v Quach (2002) 137 A Crim R 345, in particular at [8] in the judgment of the then Chief Justice.
In particular, the Crown submits that the evidence demonstrates the following five matters.
First, that Suky Lieu was a person engaged in the business of ongoing illicit drug trafficking activity, including coordinating trafficking of illicit drugs from Sydney to Melbourne.
Second, the nature of the relationship between the accused and Suky Lieu, in particular as a person participating in Suky Lieu's unlawful business activities.
Third, the nature of VS Thieu's relationship with Suky Lieu, that is, also as a person participating in Suky Lieu's unlawful business activities.
Fourth, the awareness on the part of the accused of the nature of VS Thieu's relationship with Suky Lieu, as a person participating in Suky Lieu's unlawful business activities.
Fifth, the context in which the accused and VS Thieu travelled to Sydney on 2 July 2012.
The Crown also submits that the contested evidence rebuts any assertion by the accused of innocent involvement in the activities of Suky Lieu (and of his brother, VS Thieu), in particular on 2 July 2012.
By reference to the authorities on which it relies, the Crown properly accepts that questions of admissibility must ultimately be determined by an analysis of the relevance of the evidence to facts in issue in the trial, rather than by characterisations such as "relationship evidence" or "contextual background".
The Crown contends that in each instance, that is in respect of each of the five time periods identified, the evidence is relevant to the central issues that the Crown must prove in the trial. The Crown identifies those issues as: first, whether the accused was reckless as to the fact that the backpack found in the car contained a substance that was a controlled drug; secondly, whether the accused (acting in concert with VS Thieu and both at the direction of Suky Lieu) intended to traffic that substance; and, finally, whether the accused intended (or believed) that any of that substance would be later sold by himself or another person.
The Crown argues that the evidence is circumstantially capable of proving each of those three things because it demonstrates the following twelve matters.
First, that Suky Lieu was a principal/co-ordinator of illegal drug trafficking between Melbourne and Sydney- and the 2 July 2012 transaction occurred as part of his illegal drug trafficking business.
Second, that John was a principal/co-ordinator of the supply of illegal drugs to Suky Lieu in Sydney- and the 2 July 2012 transaction occurred as part of his illegal drug supply business.
Third, that Suky Lieu and John had an established modus operandi for the supply/handover and collection/transportation of drugs and together they co-ordinated the 2 July 2012 handover/collection of the drugs in accordance with that established method.
Fourth, that Suky Lieu communicated in code with John about their illegal drug businesses and they did so in respect of the 2 July 2012 trafficking incident.
Fifth, that Suky Lieu made arrangements with John for meetings/handovers of drugs in Sydney as and when they were available and required and the 2 July 2012 handover occurred, in accordance with those arrangements, as part of his illegal drug supply business.
Sixth, that each of Suky Lieu and John used associates (or subordinates) to carry out particular tasks on their behalf in the conduct of their illegal drug businesses, and they each did so for the purpose of facilitating the 2 July 2012 transaction.
Seventh, that when drugs were available in Sydney, Suky Lieu directed and used Melbourne associates or subordinates to travel to Sydney to meet with John's associates in order to collect the drugs and then transport them back to Melbourne, and they did so for the purpose of facilitating the 2 July 2012 transaction.
Eighth, that the accused and his brother were associates of Suky Lieu and were familiar with the nature and modus operandi of Suky Lieu's illegal drug trafficking business, and they were aware that the 2 July 2012 transaction was being undertaken as part of that business.
Ninth, that the accused and his brother communicated in code with Suky Lieu, and each other, in order to conceal or hide the true meaning of their communications because those communications concerned Suky Lieu's illegal drug trafficking business.
Tenth, that the accused and his brother came to Sydney from Melbourne at the direction of Suky Lieu for the purpose of meeting with one of John's associates in order to collect drugs from John's associate, transport the drugs to another location and facilitate Harris' concealment and further dealing with the drugs.
Eleventh, that the accused did not come to Sydney simply on a whim to accompany his brother for some unknown/unspecified purpose (as the accused claimed was the reason for coming to Sydney during his arrest conversation and subsequent interview with police).
Twelfth, that the accused deliberately lied to police, firstly about his reason for coming to Sydney, secondly about where he and his brother had been whilst there and, thirdly, about with whom he and his brother had met on 2 July 2012, all out of a consciousness of guilt.
On those identified bases, the Crown contends that the evidence is relevant, as capable of indirectly (that is, circumstantially when all evidence is considered together) affecting the probability of the existence of the central facts in issue, that is the matters earlier outlined concerning the accused's state of mind and, accordingly, is admissible.
In addition, but solely in respect of the fifth period, that is, only in relation to the admitted trafficking by the accused whilst on bail for the present offence, the Crown contends that the material identified in the tendency notice is admissible to prove that the accused has a tendency to act in a particular way and with a particular state of mind. The asserted tendency is expressed as a tendency to knowingly engage in trafficking controlled drugs at the direction of Suky Lieu.
In this respect, the Crown contends that material intended as tendency evidence is relevant to proof of the central facts in issue, that being, as already observed, the relevant states of the accused's mind on 2 July 2012. The Crown submits that the evidence is capable of proving that the accused has a tendency to act in the way identified in the notice and, accordingly, to have had the relevant states of mind on 2 July. In particular, it is submitted that such a tendency is highly relevant and probative of those central facts in issue, particularly in light of the anticipated defence.
Turning then to the specific objections made to the tender of the material.
None of the material is tendered for a hearsay purpose and in my assessment the objection on that ground is misconceived.
As to the material relating to the first two time periods (see para 13 and 14 above), for the reasons articulated by the Crown, and outlined above, I am satisfied that the evidence is relevant. Its probative value is, in my assessment, reasonably high. The submissions to the contrary on behalf of the accused seem to me to misapprehend the capacity of that contextual material to sensibly inform an assessment of the offending, particularly so far as the requisite mental states are concerned. Both periods give context, by their elucidation of the nature of and methods employed in the business of Suky Lieu and John. In addition, the second period introduces familiarity on the part of the accused with that business and his brother's role within it. The second period, to a very limited extent, also introduces some minor association of the accused with that business and some action or foreshadowed action on his part at the direction or instruction variously of his brother or Suky Lieu. Subject to the operation of s 137 of the Evidence Act, the evidence relating to the first two periods should be admitted.
In respect of these first two time periods the accused made substantially the same submissions concerning the risk of unfair prejudice, or prejudicial effect, as he did in respect of the fourth and fifth periods. In essence, the submission was that the evidence is likely to provoke some emotional, irrational or illogical response on the part of the jury, resulting in the evidence being given more weight than it deserves. So far as the postulated effect of the evidence concerning these two periods was concerned, the accused submitted that the evidence was susceptible to the following prejudicial effects.
First, that the jury may deem the accused to be guilty because he appears to fit within the potentially stereotypical Vietnamese or Asian drug trafficker, without having due regard to the particular evidence and issues in the trial.
Second, that the jury may punish the accused for criminal behaviour of other members of the syndicate implicated in the background or context evidence, without having due regard to the personal criminality, if any, of the accused.
Third, that the jury may deem that the accused was criminally associated with Suky Lieu long before the period when his association with Suky Lieu is reflected in the intercept material.
Fourth that the jury will be overwhelmed by the volume and breadth of the material, which, so it is submitted, is not relevant to the central issues in the trial and will, accordingly, adopt one or other or more of the courses outlined in the preceding three purported prejudicial effects.
I do not consider that there is relevantly any risk of unfair prejudice arising from the material relating to the first two periods. Even if I am wrong about that, it seems to me that with appropriate directions the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused.
On balance, I have reached the same conclusions in relation to the evidence pertaining to the fourth period. It is sufficiently connected, temporally and otherwise, to the events and circumstances surrounding the charged offence, and by its character it is sufficiently similar to the evidence relating to the first two periods to admit of the same conclusions concerning both its admissibility and the inappropriateness of its exclusion under s 137. Like the evidence relating to the first period, the evidence sought to be adduced by reference to the fourth time period is less about the direct association of the accused with the business of Suky Lieu and more about providing background or context which can further sensibly inform an assessment of the aspects of the offending in proof of which it is proposed to be tendered.
The material relating to the fifth period is in quite a different category to the balance of the material sought to be adduced.
The evidence relating to this period is tendered both on a general circumstantial basis and, additionally or alternatively, for a tendency purpose. This period differs substantially from the earlier periods because it involves admitted criminal conduct on the part of the accused, in respect of his plea to what the County Court characterized as "street level" dealing offences. In the context of that offending, it also involves admitted association with Suky Lieu and admission to acting at his instruction and direction.
Logic dictates that the evidence has probative value, for precisely the reasons accepted in respect of the first, second and fourth periods. This is particularly true to the extent it gives further background and context concerning the business of Suky Lieu, and an association of the accused with it, at least at this later point in time. The probative value is necessarily more limited, in my assessment, than the evidence which relates to periods more immediately surrounding, and in particular prior to, the alleged offending conduct. Minds might differ about whether the probative value of this evidence is "significant". I consider that the temporal disassociation of the conduct from the alleged offending, in particular the fact that it is subsequent to the relevant events, and the different character of the offending (that is, involving street level dealing on the one hand and alleged involvement in much more substantial trafficking on the other) both militate against a conclusion that the evidence has significant probative value. But it is a question of degree.
I think as a matter of logic, principle and human experience there must be real limits to the extent to which subsequent conduct can rationally inform an assessment of the existence of a particular state of mind at an earlier point in time.
I think there is a point of real distinction between cases which accept the significant probative capacity of evidence of particular personal predilection, such as a sexual interest in children, or even a particular child, for example and the probative capacity of other, later, criminal conduct of a similar but not identical kind, to inform specific states of mind like recklessness and knowledge at a specific, earlier, point in time in relation to a particular event or circumstance that has at best only an indirect connection to the later offending conduct: cf RH v R [2014] NSWCCA 71.
Be that as it may, the evidence is relevant and subject to statutory thresholds, such as that in s 97 of the Evidence Act, and exclusionary provisions, relevantly in ss 101 and 137 of that Act, according to the particular separate bases on which it is tendered, it is admissible.
Dealing with the evidence first on the basis of its tender as general circumstantial evidence, I am, as I have indicated, of the view that it is prima facie admissible.
The question then arises whether it gives rise to a danger of unfair prejudice which outweighs its probative value.
To the particular prejudicial effects advanced by the accused in respect of the other contested evidence, which I have already outlined (see paragraphs 63 to 67 above), he adds the following additional contention.
It is submitted that the jury may in effect punish the accused for his conduct the subject of the Victorian proceedings, for which he has already served his sentence, without having due regard to the particular evidence and issues in the present trial and the differences in the conduct to which the present trial and the Victorian proceedings each relate.
The relevant enquiry as to the existence or otherwise of a risk of unfair prejudice demands consideration of whether the jury might misuse the evidence in some unfair way, for example on account of the evidence provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it deserves. An enquiry of that kind necessarily involves matters of impression and degree.
My assessment is that the evidence of the later criminal conduct, and the attendant admissions concerning it, gives rise to a real danger, divorced for the present exercise from considerations of ameliorating directions, of having a powerful, and relevantly unfair, prejudicial effect. It is apt to promote a response in the jury conducive to impermissible reasoning from the fact of admitted guilt in respect of the later matters to inevitable guilt in respect of the charged conduct. Whilst an understandable response as a matter of human experience, it is far from a rational response.
In the present case, the danger of that particular response in a jury is real and, in my view, not readily capable of adequate amelioration by directions.
As Gleeson CJ and Gummow J observed in Gilbert v The Queen (2000) 201 CLR 414 at [13]: "The system of criminal justice as administered by appellate courts requires the assumption that as a general rule, juries understand and follow the directions they are given by trial judges. It does not involve the assumption that their decision making is unaffected by matters of possible prejudice". It is the latter part of that proposition which informs, among other things, the existence of exclusionary discretions.
The law recognises that not every potentially prejudicial risk can be adequately overcome, so as to ensure a fair trial, by the giving of directions. In my view, the danger to which I have adverted in respect of the evidence of the later criminal conduct here is so profound that it is not amenable to adequate amelioration by any direction which might be given.
Accordingly, in my view the balancing exercise outlined in s 137 requires the exclusion of the evidence on the grounds that its probative value is outweighed by the danger of unfair prejudice.
I turn now to deal with the alternative basis on which the evidence is tendered, that is for a tendency purpose.
As an aside, I should indicate that I consider there is a real question whether the so-called tendency propounded in the notice, that is a tendency "to knowingly engage in the conduct of trafficking controlled drugs at the direction of Suky Lieu", is truly a tendency to act in a particular way, or to have a particular state of mind, in the sense comprehended by s 97 of the Evidence Act. Be that as it may, I will assume for present purposes that it is.
I should indicate first that, for the reasons I earlier identified, I do not consider that the evidence satisfies the threshold in s 97(1)(b).
For the reasons I have earlier identified, the evidence does have the capacity to rationally inform an assessment of the probability of the existence of specific states of mind at an earlier point in time. However, that capacity is not fairly described as significant in my view.
As I indicated when dealing with the tender on the general circumstantial basis, there must necessarily be limits on the extent to which subsequent conduct, albeit similar but not identical in its character, and substantially different in its scope, can rationally inform an assessment of the existence of a particular state of mind, in respect of quite specific circumstances, at an earlier point in time.
Accordingly, the probative capacity of the later criminal conduct to inform the specific states of mind of recklessness and knowledge as to specific circumstances as at 2 July, which have at best only an indirect connection to the later admitted conduct, is not reasonably characterized as significant.
On that basis I would reject its tender as tendency evidence. In the event I am wrong about the evidence satisfying that threshold, and I accept it is a question on which minds might reasonably differ, I will consider also the balancing exercise required by s 101.
The prejudicial effect of the evidence pertaining to the fifth period is identical, whether one is considering its tender on the general circumstantial basis, or on the basis of its use supporting tendency reasoning. As I earlier outlined, the evidence pertaining to the fifth identified period is apt to promote a response in a jury conducive to impermissible reasoning from the fact of admitted guilt in respect of the later matters to inevitable guilt in respect of the charged conduct. The prejudice, which is relevantly unfair, is profound in my assessment.
In circumstances where I consider it so profound as to resist fair amelioration by way of directions, I have concluded that the probative value of the evidence, even if it be assessed as significant, does not substantially outweigh its prejudicial effect, that is, the danger of unfair prejudice to the accused.
For all the foregoing reasons, subject to any specific objections that might arise to discrete pieces of evidence, that have not necessarily been dealt with in this debate, I propose to admit the evidence pertaining to the first four periods and to reject the tender of the evidence pertaining to the fifth period.
[3]
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Decision last updated: 23 October 2015