RADI v R

Court of Criminal Appeal (NSW)|2010-10-20|Before: Simpson J, Hoeben J, Hulme J

JUDGMENT OF: Simpson J at 1; Hoeben J at 9; RA Hulme J at 55

CATCHWORDS: CRIMINAL LAW - conviction appeal - supply of prohibited drug - issue at trial whether appellant in possession of drugs - whether evidence of bullets found in car of appellant should have been admitted - whether such evidence relevant - whether such evidence went only to tendency towards criminality - whether trial judge should have given a tendency direction - evidence properly admitted and no tendency direction required.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)

He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523 CASES CITED : RG v R [2010] NSWCCA 173 Thompson and Wran v R [1968] HCA 21; 117 CLR 313

PARTIES: Vasil Radi - Appellant Crown - Respondent

COUNSEL: Mr SJ Odgers SC - Appellant PG Ingram SC - Respondent Crown

SOLICITORS: Martin Ricci - Appellant S Kavanagh, Solicitor for Public prosecutions - Respondent Crown

IN THE COURT OF CRIMINAL APPEAL 2008/989

SIMPSON J HOEBEN J RA HULME J

Friday 19 November 2010 Vasil RADI v R Judgment 1 SIMPSON J: I have read in draft, and agree with, the judgment of Hoeben J, and also the additional observations of R A Hulme J. In respect of all grounds of appeal, I would add this (in order to distinguish the circumstances of this case from those in Thompson and Wran v R [1968] HCA 21; 117 CLR 313). 2 The appellant was charged under s 25(2) of the Drug Misuse and Trafficking Act 1985 ("the Act") with supplying not less than the commercial quantity of methylamphetamine. The highest the prosecution could put its case by direct evidence was that the appellant was in physical possession of the drug in a black bag, at the time of his arrest. By s 29 of the Act, given the quantity of drug involved, possession is deemed to be for the purpose of supply unless the appellant brought himself within one of the exceptions provided by that section (which the appellant did not attempt to do). By reason of the very extensive definition of supply in s 3 of the Act, possession for the purpose of supply constitutes supply. 3 Notwithstanding the appellant's physical possession of the drug, it was also necessary that the Crown establish, to the criminal standard, that the appellant knowingly had that physical possession: He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523. 4 On his arrest the appellant was invited to participate in an interview with police, but this he declined to do. Accordingly, the Crown was left to prove his knowledge of the content of the black bag by circumstantial evidence. One of the circumstances upon which it sought to rely for this purpose was the presence of the bullets in the vehicle, together with their association with handguns, and the obvious inference that handguns and bullets are commonly associated with drug supply. 5 It is in this respect that the evidence here under consideration may be distinguished from that under consideration in Thompson and Wran. 6 The evidence in Thompson and Wran was evidence of the possession of tools for the commission of crime. That, the High Court said, was admissible only if there shown some link with the actual offence charged - otherwise, the evidence might establish involvement in some other crime, or criminal propensity. 7 The principles are very different where the issue to which the evidence in question is directed is the accused's knowledge. Evidence of the appellant's possession of the bullets was one circumstance upon which the Crown was entitled to rely, and the jury was entitled to act, with respect to that question. Where the Crown relies upon circumstantial evidence it is not infrequently the case that some of the circumstances are not directly linked to the offence charged. 8 Accordingly, I agree with the orders proposed by Hoeben J. 9 HOEBEN J: Nature of appeal The appellant was tried before Sorby DCJ and a jury in the District Court at Sydney between 22 and 25 September 2008. The indictment presented at trial pleaded a single count that on 10 May 2007 at Villawood the appellant supplied 991 grams of a prohibited drug, namely methylamphetamine, which was an amount not less than the commercial quantity prescribed for that drug. 10 This was an offence contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) for which upon conviction there was a prescribed maximum penalty of imprisonment for a term of 20 years and/or a fine of 3,500 penalty units ($385,000): s33(1)(a) and s33(2)(a) of that Act. A standard non-parole period of 10 years was provided by item 18 of the table in Division IA of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 11 On 25 September 2008 the jury returned a verdict of guilty. On 23 June 2009 his Honour imposed a sentence of imprisonment with a non-parole period of 7 years, commencing 24 April 2007 and expiring 23 April 2014, with a balance of term of 3 years expiring 24 April 2017. 12 The appellant appeals against his conviction on the following three grounds:

Ground 1 - The trial judge erred in admitting evidence of the finding of a box of bullets in the appellant's car.

Ground 2 - The trial judge erred in admitting evidence that the bullets were predominately used in handguns.

Ground 3 - The trial judge erred in failing properly to direct the jury regarding the evidence of the finding of a box of bullets, an amount of currency and a number of mobile telephones in the appellant's car.

Evidence at trial 13 It was the Crown case that the police had been conducting a surveillance operation in respect of a Mr Han. On 10 May 2007 they observed the appellant drive his motor vehicle into the underground car park of the building where Mr Han resided. Approximately ten minutes later, the appellant drove out of the car park. Approximately 40 minutes later, Mr Han parked his motor vehicle outside premises in The Avenue, Yagoona. A minute later the appellant parked his motor vehicle outside the same premises. 14 Mr Han was observed to leave his motor vehicle carrying a black leather attaché bag, approximately A4 sized, as he walked over to the appellant's vehicle and spoke with the appellant. He then entered the undercover driveway to the premises. The appellant followed Mr Han in his car to a location outside unit 5. Mr Han entered unit 5 and the appellant remained sitting in his car which was parked in front of that unit. 15 Shortly thereafter, Mr Han left unit 5 and went over to the appellant's car on the front passenger side. As he was approaching the appellant's car, he had his right hand inside the left breast area of the black jacket he was wearing and it appeared to be bulging. Mr Han lent into the passenger side of the appellant's vehicle up to his waist. A few seconds later, Mr Han moved backwards from the window and at that stage his right hand was out of his jacket and he was not holding anything in either hand. Mr Han then walked back towards unit 5. After a few minutes the appellant drove his motor vehicle up the driveway and north along The Avenue. 16 Approximately three minutes later the police stopped the appellant's vehicle. On the front seat a black sports bag was located. Inside the bag was a clear resealable plastic bag containing a yellow-brown crystal substance. An analysis of this substance showed that it comprised 991 grams of methylamphetamine with a purity of 74 percent. Its value, if sold on the street, was between $198,200 and $495,000. 17 A further search of the vehicle revealed $2,800 in Australian currency, four mobile phones (one of which was in the name of Marco Markovic) and a box of cartridges that could be used in handguns (.32 Winchester rounds). The box of cartridges was found in the passenger door pocket of the appellant's vehicle. No handgun was found in the appellant's vehicle. 18 An analysis of the phones taken from the appellant and from Mr Han revealed that during the period 6 May 2007 until 10 May 2007 there were a total of 29 phone calls between the phones of the appellant and those of Mr Han. 19 The appellant gave evidence. He denied knowledge of the drugs. He said that he first saw the black bag on the front seat of the car after he stopped at the traffic lights in Woodville Road, shortly before he was stopped by the police. He said that he had never seen the black bag before and the first he knew of its contents was when he was shown them by the police. He denied seeing Mr Han putting the bag inside the car. He denied seeing Mr Han with a black bag, but said that he was not looking at him. 20 The appellant said that Mr Han told him to wait for 10 minutes, but being a diabetic, he told Mr Han that he was going to collapse, that he would go and get something to eat and come back. The appellant said that he left the Yagoona premises to go to a Kentucky Fried Chicken shop on Woodville Road. He said that at one point he braked hard and that this was when he first saw the bag on the floor. He had not seen it before and picked it up and put it on the front seat. He thought that it was a laptop. It was not long after this that he was stopped by the police. 21 The appellant denied any knowledge of the bullets. He said that the car was new and that he had only had it for a couple of months. When he bought the car he inspected it, but he did not see any bullets in the car. The appellant said that before 10 May 2007 he had withdrawn $3000 from his bank account to pay for his medication, car registration and that he also wanted to insure the car, although he could not remember when he withdrew the money. 22 The appellant provided explanations for three of the four mobile phones found during his arrest with the one registered in the name of Marco Markovic being a gift from Marco. In cross-examination he said that he loved his phones and that he used the Nokia every day at work because it had a long lasting battery and that the Samsung, which was slim and very thin, he used for his family overseas. He was unable to provide an explanation for one of the phones, which was located in the glove box of the car, stating that he had no idea where it came from. 23 The central issue in the trial was whether the appellant was aware that the bag contained drugs before being stopped by the police. The appellant accepted that Mr Han must have put the bag into his car when he was at the Yagoona premises, although he said that he did not see this happen. He said that he had been told by Mr Han, with whom he planned to have coffee, that he was picking up his "laptop" and documents from his accountant. 24 It was accepted that the appellant had never been convicted of any drug offences and was on that basis a person of good character. 25 When the Crown sought to adduce evidence as to the finding of the box of bullets, objection was taken by the defence. Thereafter the following exchange took place: "COUNSEL: … The Crown wants to introduce some evidence about the findings of a box of bullets on the passenger side of the motor car. HIS HONOUR: Bullets? COUNSEL: Bullets. A box of Winchesters. There were two missing. There is no forensic evidence to indicate that he has come into contact with them. I would be objecting to that on the basis that it's prejudicial and in fact far outweighs any probative value. I am aware there are cases, of course, that talk about the indicia of supply, and the Crown also referred me to the case of Blackwell, where evidence of things like weapons, I think … HIS HONOUR: Yes. COUNSEL: Weapons are admissible. But in my respectful submission, your Honour, the only thing that was located was the box of bullets, but there was no weapon found, no other - a handgun or a rifle or anything like that. So have I summarised it, Mr Crown? CROWN: That's correct, yes. HIS HONOUR: It has some limit of use, does it not, though? COUNSEL: Certainly how much weight can be placed on it. HIS HONOUR: That's about where it goes. COUNSEL: Yes HIS HONOUR: It's not as if it was a packet, container, a carton, a book, a carton without the bullets you might say, well. But this actually has bullets in it. COUNSEL: That's right, and there's a couple missing. HIS HONOUR: Bullets have a purpose. COUNSEL: As the Crown said to me, "Where there's bullets, there's usually a gun." HIS HONOUR: Yes. They're not much good without a gun. COUNSEL: Unless you're going to throw them at somebody. HIS HONOUR: But seriously, they're not much good without a gun. COUNSEL: That's right. HIS HONOUR: And they go with a gun, they're not separate from it. So I think, in the end, it will be a question of weight really. COUNSEL: Certainly. … HIS HONOUR: As an indicia of drug supply." (T.3.6 - 23.9.08) 26 There was evidence given by one of the police witnesses that these bullets could be used with a handgun. That evidence was: "CROWN: Are you able to tell the Court what sort of firearm these cartridges would be used in, or can be used in? COUNSEL: I object your Honour. What's the relevance of what sort of firearm it's used for? Unless this witness is going to say a firearm was also located I just don't see the relevance. HIS HONOUR: I'll allow the question if he knows the answer. CROWN: Do you know what type of firearm these cartridges could be used in? A. I believe predominantly they are used in handguns. It could be any - as long as it's a .32 calibre - could be any make obviously." (T.32.46 - 23.9.08)

Grounds of Appeal 1 and 2 27 These grounds of appeal can conveniently be dealt with together since they raise the same issue. 28 The appellant's primary submission was that this evidence was not relevant and should have been excluded. In making that submission, the appellant relied upon Thompson and Wran v R (1968) HCA 21, (1968) 117 CLR 313. 29 The facts in Thompson and Wran are important. The appellants there had been convicted of two counts of breaking entering and stealing. The stealing alleged included the taking of money from two safes, each of which had its door blown off. As part of the evidence to identify the prisoners with the crimes with which they were charged, the Crown proved that they had in their possession a collection of tools and implements, which had been referred to as a "kit", for the opening of safes by blowing, by drilling or by picking the lock. Expert evidence was led about the way in which various parts of the "kit" could be used to open a safe. 30 Their Honours rejected that evidence as irrelevant on the following basis: "These examples of the evidence that was given show that the Crown led evidence that the accused had in their possession implements for opening or breaking into safes, including implements which were not used to blow open the safes which the prisoners were alleged at the trial to have opened by the use of explosives, and were not appropriate for use in the commission of such a crime. In our opinion, this evidence went beyond what was permissible. Evidence that the prisoners had in their possession material, which might have been used to break into and to steal from the Darwin Bowling Club or the Darwin Squash Centre, or, was of the same character as what was used in the commission of those crimes, was admissible to identify them with the crimes, e.g., a jemmy to break in, or a supply of gelignite, detonators, wires and batteries, suitable for the blowing of the safes. Some of the evidence admitted, however - of which instances have already been given - did no more than tend to show that the prisoners were well-equipped safebreakers. We do not think that evidence of the possession of tools for the commission of crime is admissible only when it appears that tools of that nature were used in carrying out the alleged crime; it is sufficient if such tools might have been so used: R. v. Sims 1 where Goddard C.J. said: "Thus, in the case of burglary, evidence is admissible that housebreaking implements such as might have been used in the crime were found in the possession of the accused." In all cases, however, where such evidence is admitted, it is to identify an accused person with the crime charged against him, and evidence that the possession of tools of crime other than those which were or might have been used to commit the crime charged, or tools of such a nature, is, in the absence of some special connexion, inadmissible because it does no more than prove criminal disposition …" (p 316) 31 The appellant submitted that the only relevance of the evidence as to a box of bullets and their use in a handgun, would be to establish a propensity on the part of the appellant to engage in criminal conduct and as such should have been excluded pursuant to ss 97 and 101 of the Evidence Act 1995 (NSW) (the Act). The appellant submitted that this had to be so since no firearm was found in the motor vehicle or in the appellant's possession. 32 Implicit in this submission is that if a firearm had been found, the submission would not be available. I have some difficulty with the distinction which is sought to be made. If it is accepted that evidence as to the possession of a firearm would operate as an indicium of drug supply, it seems equally true that a box of bullets, which could only be used in a firearm, has the same relevance. 33 The basis upon which the evidence was admitted was that one of the indicia of drug supply (to be taken with the multiple mobile phones and large sum of money) was the use of firearms by persons engaged in such supply. The offence with which the appellant was charged was drug supply. Accordingly, evidence of the finding of a box of bullets was relevant. 34 This was the very circumstance identified in Thompson and Wran which would establish relevance, i.e. that it was sufficient if the tools "might" have been used in the commission of the charged offence, not that they necessarily had been so used. 35 I am satisfied that the evidence as to the finding of a box of bullets was relevant in that it constituted an indicium of the offence with which the appellant had been charged, i.e. the supply of a commercial quantity of drugs. Accordingly, it was not relevant only as establishing a tendency towards criminality on the part of the appellant. His Honour did not err in allowing the admission of the evidence on the basis that it was relevant. 36 The alternative submission by the appellant is that even if the evidence were relevant, it should have been excluded under s137 of the Act in that its probative value was outweighed by the danger of unfair prejudice to the appellant. 37 The appellant submitted that in the absence of a firearm being found, the probative value of the evidence was limited but the risk of unfair prejudice to the appellant was substantial. The unfair prejudice relied upon by the appellant was that the jury might use the evidence for impermissible tendency reasoning, i.e. that the appellant must have had a firearm in the past which he probably used for criminal purposes even if he did not use it on this occasion. 38 It is clear from the exchange between counsel and his Honour which took place when the evidence was admitted, that the objection taken by counsel was a s137 objection. While his Honour's statement of reasons was brief, it was sufficient. His Honour clearly regarded the probative value of the evidence to not be outweighed by the danger of unfair prejudice. His Honour did not err in so finding. 39 In considering its probative value, the evidence should not be looked at in isolation. It should be looked at with the other evidence to similar effect, i.e. as indicia of drug supply of which it formed a part - multiple mobile phones, a large sum of cash, and the many phone calls which had passed between the appellant's mobile phones and those of Mr Han, before the apparent receipt from Mr Han by the appellant of the drugs. Approached in that way, the probative value of the finding of a box of bullets was significant. 40 The danger of unfair prejudice which is relied upon in the submission is illusory. It is clear from the evidence and the submissions at trial that there was no suggestion that the evidence should be relied on to establish a criminal tendency. Such a proposition was not put by either side and certainly not in the way suggested by the appellant in his submissions. This is so despite the fact that there was an ambiguity in the way in which the Crown expressed himself during his final address. 41 On two occasions his Honour explained to the jury in clear terms how the Crown relied upon the evidence, i.e. as an indicium of drug supply. This was consistent with the ultimate acceptance by counsel for the appellant at trial that the problem with the evidence related not so much to the prejudice which it was likely to create, but the weight which should be given to it. 42 On the second occasion that his Honour had cause to deal with this issue, his Honour said: "However, knowledge or belief may be inferred by or concluded from consideration of the surrounding circumstances provided such inference is a rational conclusion and is not based on speculation or suspicion. Because of the requirement that the Crown proves this beyond reasonable belief doubt, any inference or conclusion that you draw about the accused's knowledge or belief must be the only rational inference or conclusion open on the evidence … You consider all the pieces of evidence on which the Crown relies and decide what facts are proved by that evidence and then in the light of all the evidence of the case, ask yourselves whether the combination of facts satisfies beyond reasonable doubt and that the only reasonable conclusion or inference arising from those facts, is that the accused knew that there were drugs in the black bag. You will understand that what we are asking about is not speculation or guessing, it is a logical thought process. If after consideration of the evidence you are not satisfied beyond reasonable doubt that the only reasonable conclusion which can be drawn from the evidence is that the accused knew there were drugs in the black bag, then you must find him not guilty of the charge. The Crown relies on the following pieces of evidence." (SU 19.5, 21.6)

His Honour then set out the pieces of evidence to which reference has already been made which included the finding of a box of bullets. 43 In relation to the ambiguity in the Crown's final address, what the Crown said was: "A box of cartridges in the front passenger's door pocket. Complete mystery to the accused, how they got there. Complete mystery. He tells you that he bought the car, this car that he loved so much, two or three months before 10 May and he had never, ever looked in that passenger's door pocket. You can accept that if you wish or you can accept what the Crown says is more likely; that having ammunition used in handguns is more indicative of somebody who deals in drugs and that circumstance the Crown says goes towards satisfying you that he knew that what he had there were drugs." (T.8.49 - 25.9.08)

While the use of the word "deals" in the submission was infelicitous, its effect is clarified by the final words of the sentence where the Crown relates it specifically to the actual offence, i.e. "that he knew that what he had there were drugs". 44 Accordingly, I am not persuaded that his Honour erred in concluding that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant. Moreover, the warning which his Honour gave in his summing up on a number of occasions against speculation or suspicion, while emphasising the need for a rational thought process, specifically addressed that issue. It follows that the appellant has not made out grounds of appeal 1 and 2.

Ground of appeal 3 45 The appellant's submission under this ground is that his Honour erred in failing to direct the jury not to engage in propensity reasoning. The appellant submits that it was inevitable that the jury would engage in such impermissible reasoning given the way in which the Crown prosecutor had addressed. The appellant relied upon the statement in Thompson and Wran at page 317.9:

"Furthermore, when evidence is admitted which is relevant but which also shows criminal propensity, a judge should explain the limited use that can be made of that evidence." 46 The appellant's submission assumes that the evidence as to offenders involved in drug supply being in possession of "large sums of cash money", using multiple mobile phones and using firearms, constituted tendency evidence in that it disclosed a propensity to engage in drug dealing from which the jury were asked to infer that the appellant must have known that the black bag contained drugs. I do not agree. 47 I have already indicated why the ambiguity in the Crown's final submission does not have the effect sought to be given to it. Similarly, I have referred to the two occasions on which his Honour in summarising the Crown case, explained in clear terms to the jury how it was that the Crown sought to use that evidence. Nowhere in his Honour's summation was there any suggestion of this evidence demonstrating a tendency towards criminality generally, as distinct from indicating actual knowledge on the part of the appellant of the contents of the black bag. On the contrary, as the extracts from his Honour's summing up indicate, his Honour specifically warned against speculation and suspicion. While his Honour did not specifically use the words "tendency evidence", the effect of the warning was clear. 48 Assistance on the question of what is tendency evidence is provided by the observations of Simpson J (with whom Campbell JA and Whealy J agreed) in RG v R [2010] NSWCCA 173 where her Honour said:

"30 As I have said, the ground depends upon the premise that the evidence was, indeed, tendency evidence.

31 A simple answer to the proposition of the appellant lies in the Dictionary definition of "tendency evidence". "Tendency evidence" is evidence tendered for the purpose of proving a tendency. The purpose in this case was not to prove that the appellant had a tendency; it was tendered for another purpose, well recognised in criminal law, particularly criminal law relating to sexual abuse of children. That purpose was to establish a "context" in which the act the subject of the charge was committed. Evidence of this kind has, over the years, come to be called "relationship" or "context" evidence. … 34 While it is tempting to suggest that, since the stated purpose of the tender of the evidence was not to establish a tendency, the Dictionary definition excludes the application of s 97 and s 101, to do so would be to over simplify. While neither the District Court nor this Court ought lightly to find that a purpose stated by a responsible trial advocate or Crown prosecutor is not the true purpose of the tender of the evidence, neither Court is bound by such a statement. In some cases at least, it will be necessary for the trial court, or this Court, to examine the reality of what is sought to be achieved by the admission of the evidence. If that analysis shows that, notwithstanding that the Crown's stated purpose was to establish a "context", or a "relationship", the reality is that the evidence was tendered to establish a tendency, then s 97 and s 101 must be applied." 49 Her Honour's remarks in RG were made against a background of contrasting "relationship/context" evidence on the one hand with tendency evidence on the other. In such cases there can be an overlap between the two categories of evidence which when it occurs needs to be explained to the jury. The contrast here was between evidence relevant because it constituted indicia of the actual offence and tendency evidence. Because of the nature of the evidence in this case, there was no such overlap which required an explanation. 50 In this case there is no reason not to accept the Crown's statement of the purpose of the evidence, particularly when this was restated on two occasions by his Honour in his summing up. Moreover, no application was made by defence counsel at trial for the exclusion of the evidence on the basis that it was tendency evidence or that otherwise the prerequisites for the admission of the evidence had not been met. 51 The manner in which the Crown case was presented did not raise the possibility that the appellant had a tendency to participate in drug supply or any other offence. There was no suggestion in the Crown case that the appellant had ever previously committed an offence, whether involving drug supply or otherwise. The Crown appears to have accepted without demur the appellant's submission that he was of prior good character. 52 On the particular facts of this trial, given the way in which it was conducted by both the Crown and the defence, as a matter of reality the evidence relied upon in ground 3 could not have been used by the jury for a tendency purpose. To the extent that there was any risk that this might occur, that risk was adequately met by his Honour's directions. 53 It follows that the appellant has not made out his third ground of appeal. 54 The order which I propose is that the appeal be dismissed. 55 R A HULME J: Whilst the offence in question was complete upon proof that the appellant was in possession of the drug at the time of his arrest, it must be remembered that proof that this constituted "supply" for the purposes of s 25 of the Drug Misuse and Trafficking Act 1985 relied upon the extended definition of that term in s 3 of that Act. The Crown relied upon an allegation that, with the aid of the deeming provision in s 29, the appellant was in possession of the drug "for supply". That, obviously, connotes a future activity.

56 The relevance and probative value of evidence that a person was in possession of bullets, but no gun, at the time of a physical supply of drugs from that person to another may be a different matter. The bullets would have no obvious use in the commission of such an offence and, without more, the evidence would likely fall to be excluded for the reasons given in Thompson and Wran v R (1968) HCA 21; 117 CLR 313. (I pause to emphasise that I am speaking in quite a general sense). However, possession of bullets that may be used in a handgun in circumstances in which it is alleged that the person has a future purpose of supplying the drugs is clearly in the category of an "indicium of supply". The evidence on this issue was rightly admitted.

57 As to Ground 3, to direct a jury that it should not reason that the accused had engaged in supplying drugs on other occasions, when there had been no suggestion that he had, as Hoeben J has explained, would have been fraught with a variety of difficulties. I am satisfied that such a direction would not have assisted the appellant's case. There is little wonder that no such direction was sought.

58 With those additional observations, I agree with the reasons of Hoeben J and the orders he has proposed.

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