Shah v R

JUDGMENT

1. STERN JA: I agree with the orders proposed by Button J and the reasons given by his Honour for proposing those orders.
2. ROTHMAN J: I have had the advantage of reading the draft reasons for judgment of Button J and agree with his reasons and the order his Honour proposes. Further, although not argued, even if the hearing had not commenced and the unamended provisions applied, I would have admitted the evidence.
3. BUTTON J:

Introduction This judgment resolves an appeal against conviction only brought by Mr Abdul Malik Shah, assertedly pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW) on the basis of an error of law alone.

1. Although the appeal is brought well out of time, leave to pursue it was not opposed by the Crown, and I would grant it, with the result that I shall refer to Mr Shah as "the appellant".
2. On 28 April 2022, he was found guilty by a jury of the following offence: On or about 17 May 2019, at Roselands in the State of New South Wales, [he] did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely cocaine, and the quantity possessed [sic] being a marketable quantity.
3. The appellant was subsequently convicted and sentenced to imprisonment, about which no more need be said.

Ground

1. The single ground of appeal is as follows: A miscarriage of justice resulted from the trial judge's decision to admit evidence relied upon as coincidence evidence.
2. The ground pertains to a ruling of 5 April 2022 of the learned trial judge that certain coincidence evidence would be admitted over objection: see R v Shah (No 1) [2022] NSWDC 707 at [11]-[15].
3. I set out the relevant portions of the statutory test for the admission of coincidence evidence, as it applied to this trial. To expand on that a little: the indictment shows that the appellant was originally arraigned in the District Court on 29 May 2020. The applicable amendments to the statutory test commenced on 1 July 2020. The transitional provision applying to those amendments, cl 28 of the Evidence Act 1995 (NSW) Sch 2 Pt 6, is as follows: 28 Proceedings already begun (1) An amendment made to this Act by the amending Act does not apply in relation to proceedings the hearing of which began before the commencement of the amendment. (2) This Act, as in force immediately before the commencement of the amendment, continues to apply in relation to proceedings the hearing of which began before that commencement.
4. Because the "hearing" had commenced by way of the first arraignment in the District Court prior to the commencement of the amendments, the statutory test applicable was therefore that in existence on 30 June 2020: see Su v R [2023] NSWCCA 21, and, generally, the majority judgment in Stephens v R (2022) 273 CLR 635; [2022] HCA 31. I note that: this was the approach taken in the written submissions of the Crown at first instance about the coincidence evidence; it was the approach taken in the judgment of the trial judge; and no suggestion was made for the appellant about there being any question of the wrong version of the statutory test having been applied in this Court. 98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless - (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. … (2) Subsection (1) (a) does not apply if - (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.… 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant. … probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
5. Two issues can be resolved conveniently now.
6. The first is that the parties were agreed in this Court that the "correctness standard" applies to such a ground, with the practical result that members of this Court must come to their own determination, rather than searching for error in the decision or reasons for it of the trial judge. I accept that joint position: see R v Bauer (A Pseudonym) (2018) 266 CLR 56; [2018] HCA 40.
7. The second is that it was made clear for the appellant that the matter could be decided by this Court on the basis of the materials that were available to the trial judge at the time of the decision in question, rather than there needing to be consideration of subsequent events in the trial or otherwise. I adopt that approach as well, with the result that evidence that came into existence after the decision under appeal was made will be sketched only briefly.

Central issue in trial

1. Focusing on the count for a moment, it was not disputed in the trial that, on the date and at the place in question, the appellant had tried to take possession of a parcel that had been delivered to a post office in a suburb of Sydney. Nor was it disputed that that parcel had contained over 330 grams of pure cocaine; that cocaine is a border controlled drug; and that that quantity of it was above a marketable quantity as defined by statute.
2. The sole issue in the trial was whether the Crown could prove, beyond reasonable doubt, that the appellant had tried to obtain the drug itself, as opposed to the packaging in which it was secreted, and the other contents of that container.
3. On the appeal, it was agreed that the central, contested mental element of the offence was proof by the Crown to the criminal standard either of knowledge that the box contained a border controlled drug, or recklessness (foresight of the real possibility) of that state of affairs, in accordance with s 307.6 of the Criminal Code 1995 (Cth).

Background

1. I proceed to set out the undisputed evidence in the trial most salient to the ground of appeal, in general chronological order. As I do so, I shall delineate the coincidence evidence that the appellant submits was wrongly admitted, and the evidence to which there was no objection. I shall also briefly identify the few disputed facts (quite apart from the overarching issue of proof of the mental element, of course). During my review, I shall emphasise by underlining for the convenience of the reader details that appear to me to be noteworthy.
2. To be clear: I do not propose to detail all of the evidence in the trial, for two reasons. First, there is no ground that the verdict of guilty is unreasonable or unable to be supported. Secondly, as noted above, counsel for the appellant asked this Court to reflect upon the question of the admissibility of the coincidence evidence as that question presented itself at the time it was answered in the affirmative by the trial judge.
3. As at May 2019, the appellant was living at 6/1089-1101 Canterbury Road Wiley Park, a Sydney suburb. His phone number was +61452198774. He had previously resided at 4/42 Arthur Street Punchbowl, another Sydney suburb.

The uncharged consignment

1. The coincidence evidence the subject of objection pertained to the following, to which I shall refer as "the uncharged consignment".
2. On or about 28 April 2019, consignment number EE064589103ZA ("3ZA") arrived in Australia from the Republic of South Africa (RSA). It was selected for examination at the international mail centre, Sydney, NSW, due to anomalies in its x-ray image. There were fabrics inside the item, but four packages containing "white powdery substance" were also found concealed in the internal walls of the cardboard box.
3. The consignor was noted as "Michael James, Long Market Str-20, Cape Town, RSA. Ph: 0610179722".
4. The consignee was said to be "Abdul Sheh, 4/1089-1101 Canterbury Road, Wiley Park, 2195, Australia. Ph: +61 452199774".
5. It can be seen immediately that the first name of the purported consignee was identical to that of the appellant; that the last name was different by one vowel; that the apartment street address was identical; that the unit number was different by two units; and that the phone number of the consignee and of the appellant were identical, save for one number.
6. On 3 and 13 May 2019, the appellant contacted Australia Post using his wife's mobile phone and enquired about the whereabouts of the uncharged consignment. There was a dispute at trial as to whether he identified himself as "Abdul Sheh", in accordance with the name of the consignee of the uncharged consignment, or whether that was merely how he pronounced his family name, Shah.
7. The appellant did not obtain possession of the uncharged consignment at that stage.

The Charged Consignment

1. I turn now to discuss the evidence underpinning the count itself, to which no objection was taken. I shall refer to the package in question as "the charged consignment".
2. In short, the appellant attempted to possess a parcel sent from the RSA to an address in Wiley Park, New South Wales. That parcel contained 332.2g of cocaine, concealed in cardboard packaging. As I have said, there was no dispute that he attempted to obtain possession of the parcel; the crucial question was whether he was also seeking to obtain possession of the drugs inside it.
3. On 13 May 2019 (that being the same date as the second telephone enquiry of the appellant about the uncharged consignment), the charged consignment arrived in Australia. It was also selected for examination at the international mail centre due to anomalies in its x-ray image. The contents were fabrics, but four packages containing "white powdery substance" were found in the internal walls of the cardboard box; as I have said, the substance was cocaine.
4. The consignor was recorded as being "Godfrey LYIMO, Royal one - N0120 Royal Road, Maitland, Capetown, RSA. Ph: 07 13560776".
5. The consignee was recorded as being "Abdul Sheh, 4/1089-1101 Canterbury Road, Wiley Park, 2195, Australia. Ph: +61 452198774".
6. Again, one can see that the first name of the consignee is that of the appellant; the second name is different by one vowel; the apartment block street address is shared; the unit number is different by two units; and the phone number of the purported consignee and of the appellant are identical.
7. Furthermore, many attributes of the uncharged consignment and the charged consignment can be seen to be identical or very similar. They are: the country from which the package came; the city from which the package purportedly came; the first name of the purported consignor being European (albeit different); the first and family name and address of the consignee; and the phone numbers of the consignees: +61 452199774 in the case of the uncharged consignment, and +61 452198774 in the case of the charged consignment.
8. On 16 May 2019, Senior Constable Heath Woods completed an Australia Post collection notice (tracking number EE064589390ZA) regarding the charged consignment which he placed in the mailbox of 4/1089-1101 Canterbury Rd, Wiley Park, NSW (Unit 4).
9. He gave evidence that he wrote the consignee name and tracking number on the collection notice, but not the address of the consignee.
10. The police officer spoke to Ms Rose Araniego at the Roselands Post Office about the charged consignment, as follows.
11. The collection notice was removed by somebody from the unit 4 mailbox that day.
12. On 17 May 2019, the appellant attended Roselands Post Office and attempted to collect the charged consignment.
13. He presented the collection notice from the unit 4 mailbox and his photo identification showing his residential address as 6/1089-1101 Canterbury Rd, Wiley Park (Unit 6).
14. A different Postal Service Officer took the appellant's photo ID and the collection notice, but was instructed by Ms Araniego to tell the appellant that the parcel could not be found.
15. Ms Araniego took photographs of the photo identification and collection notice. The appellant declined to leave a phone number, and left.
16. Between his departure from and return to Roselands Post Office, the appellant made a number of phone calls.
17. Twenty minutes later, the appellant returned to the post office. There was no dispute in the trial that he and Ms Araniego had a further conversation, but its details were disputed, as follows.
18. Ms Araniego said the appellant asked if she could check for Unit 4, because he used to live at Unit 6, but lived by then at Unit 4.
19. During cross-examination, it was put to Ms Araniego that the appellant had said the opposite: that he used to live at Unit 4, but by then lived at Unit 6. She did not accept this.
20. Ms Araniego asked the appellant to write his address on the collection notice, and saw him write, "number 4 1089 Canterbury Road, Wiley Park". That card was not in evidence (the appellant said that he threw it out). The appellant disputed this, and maintained that he wrote his current address on the card, that is, number 6 1089 Canterbury Road.
21. The appellant was told that the package was not there, and left.

Concluding events regarding uncharged consignment

1. Reverting now to the uncharged consignment, three days after those events at Roselands Post Office, on 20 May 2019, Senior Constable Woods was advised by the Australian Border Force that the uncharged consignment also contained secreted cocaine in the approximate quantity of 325 grams pure, along with African clothing, and (as I have said) was addressed to 'Abdul Sheh' at the Unit 4 address.
2. On 21 May 2019, Senior Constable Woods left another collection notice in the mailbox for Unit 4, pertaining to the unchanged consignment. Surveillance was conducted by police, but no one was seen to collect that notice. Search warrant, arrest, charge
3. On 23 May 2019, a search warrant was executed at the home of the appellant. Some items of note were located, including a number of resealable plastic bags under a double bed. Photographs were located on his phone of large bundles of cash, including one on his coffee table. A screenshot of 20 April 2019 was also found on his phone, pertaining to a website about mail delays from RSA to Australia. There was also a photograph of a white powdery substance on his phone.
4. The appellant was arrested and taken to a police station. He engaged in a recorded interview, the thrust of which was that he denied knowledge (or any lesser state of mind) that cocaine was contained in either of the two consignments. He explained the plastic bags as being "weed bags" of his friends. In his evidence in the trial (provided of course after the decision of the trial judge under consideration), he resiled from some of the things that he had said in the recorded interview.
5. As part of the defence case at trial, the brother-in-law of the appellant was called to explain the photograph of the bundle of money located on the mobile phone of the appellant. The wife of the appellant was also called to provide generally exculpatory evidence. Finally, the appellant raised good character.

Appellant's written submissions

1. In written submissions, the appellant accepted that the correctness standard of appellant review is applicable.
2. It was said that, in oral and written submissions at first instance, the Crown had said that the admission of the coincidence evidence was directed towards the state of mind of the appellant when he sought to obtain the charged consignment.
3. Complaints were made about aspects of the reasons given for the admission of the evidence by the trial judge; in light of the need for this Court to consider the question afresh, I shall not summarise those complaints.
4. Attention was drawn to an asserted divergence between the basis for admission identified by the trial judge, and the final address of the Crown prosecutor. Again, in light of the position adopted in this Court that one must focus on the question as it presented itself to the trial judge, I do not consider that this written submission requires further discussion.
5. The same was said in writing about an asserted divergence between the basis for admission and the summing-up, in that his Honour was said to have spoken to the jury of the coincidence evidence being relied upon "to prove that the consignments were sent by the same person with preplanning". Again, that submission seems to me to have been superseded by the contentment with focus upon things as they stood at the time of the decision to admit the evidence; even so, because of its importance, I will address that written submission briefly in my determination.
6. Separately, it was said in writing that aspects of the summing-up "did not adequately explain to the jury how they could and could not use the coincidence evidence". It was said that that asserted failing "heightened the prejudice" inherent in the admission of coincidence evidence.
7. In analysing the statutory test, the steps spoken of in R v Gale; R v Duckworth (2012) 217 A Crim R 487; [2012] NSWCCA 174 were identified and adopted.
8. Reflecting upon the question of significant probative value, it was conceded that the two consignments were similar; that the appellant made enquiries about each of them; and that it was "improbable that the two consignments were sent coincidentally". But it was said that all of that did not "without more, make the evidence admissible for the purpose of imputing the appellant's state of mind".
9. More specifically, it was submitted that the physical similarities between the two consignments, and the enquiries about them by the appellant "tend to prove nothing about his state of knowledge of the consignments' contents".
10. It was said that any inculpatory line of reasoning would require the jury first to assume that the appellant knew that the uncharged consignment contained drugs, and to reason from there that he must have known that the charged consignment contained drugs, because of the similarities between the consignments and his enquiries regarding them.
11. Reference was made to R v Zhang (2005) 158 A Crim R 504; [2005] NSWCCA 437, another case involving coincidence evidence and the importation of narcotics. Reliance was placed upon the dissenting judgment of Basten JA favouring exclusion of the evidence; it was said that, in a number of ways, the evidence here was less probative than it had been in R v Zhang.
12. In short, the written submission seemed to be that the coincidence evidence had no probative value; if that were rejected, the proposition was that it certainly did not possess significant probative value.
13. It was said that the evidence of coincidence at its highest tended only to prove the knowledge of the appellant of the existence of the consignments simpliciter, but not their illicit contents.
14. As for the suggestion of the trial judge in the summing-up that aspects of the consignments may have suggested "contrivance", it was said that that favoured ignorance on the part of the appellant, not guilty knowledge.
15. It was also said that the explanation in the recorded interview of the appellant - that he did not know that the consignments contained drugs, but rather thought that they contained African sarongs sent by a male relative - had been placed before the trial judge on the voir dire, and needed to be reflected upon in assessing whether the coincidence evidence had significant probative value.
16. As for the danger of unfair prejudice, it was said that that was real: the jury may have thought simply that the appellant was someone who had involved himself with prohibited drugs generally, rather than focusing on proof of the elements of the count beyond reasonable doubt. It was also said that the jury may have reasoned impermissibly that, simply because the appellant knew of the existence of the licit consignments in the sense of the packages, one could infer that he knew of their illicit contents.
17. Finally, it was said in writing that, if the ground were established, the proviso could not save the conviction.

Appellant's oral submissions

1. Orally, it was said that the Crown had relied upon the coincidence evidence for three purposes. The first was said to be in order to make it more likely that the appellant intended to possess the charged consignment, in its anodyne form. But that was hardly a fact in issue: it was clearly conceded by the appellant that he had tried to do so.
2. Secondly, the coincidence evidence made it more likely that the appellant had prior knowledge of the impending arrival of the charged consignment. It was accepted that the coincidence evidence did "move the needle" in that way, but only with regard to the package itself, not its illicit contents. But again, that was said not to be the central issue, with the result that it had little probative value, and gave rise to a significant danger of prejudice.
3. It was submitted that, as for proving the mental element of knowledge or recklessness about the presence of a border controlled drug within the charged consignment (referred to as the third state of mind), the coincidence evidence simply was not "of the necessary kind or character to get to that more granular state of mind".
4. It was said that coincidence reasoning can be "particularly damning", and that is why the hurdles within the statutory test have been created by Parliament.
5. There was a return to analysis of the particular facts in R v Zhang, and a submission that the evidence was weaker in this case than in that one. Having said that, it was conceded that, in applying the statutory test, "[n]o case can be made as a benchmark when it comes to these exercises".
6. It was accepted that it was hardly likely that the arrival of the two consignments was a coincidence. But the rhetorical question was asked as to what actually flows from that, and whether it went to proving the particular disputed state of mind on the part of the appellant, as opposed to any guilt on the part of the consignor.
7. As I understood the submission, the alternative rational hypothesis was put forward that, even reflecting upon the similarities between the consignments, and the efforts of the appellant to obtain possession of each of them, it was quite possible that the appellant was a dupe who was being used as an innocent conduit for the importation of border controlled drugs.
8. Later it seemed to be conceded that, for some purposes to do with a state of mind of the appellant, the coincidence evidence could be assessed as possessing significant probative value.
9. It was accepted that, of the three states of mind to which counsel referred, the question "really does come down to a [sic; the?] third state of mind".
10. Finally, it was explained that the focus on the danger of unfair prejudice was not in fact generalised, but instead particular, as follows. It was said that the evidence passed the statutory test only with regard to the second state of mind spoken of by counsel, but the jury, whatever directions it was to be given, would inevitably have used it as proof of the third state of mind.
11. In reply, it was confirmed that this Court was being asked "really to look at the state of affairs at the time the decision was made to admit".

Determination

1. Applying the "correctness test" and reflecting upon the admissibility of the coincidence evidence for myself, I am well satisfied that it passed the then-applicable statutory test for its admission. My analysis is as follows.
2. The fact in issue to which the coincidence evidence could be relevant was the state of mind of the appellant when he sought to take possession of the charged consignment. Indeed, that was the only element of the count that was in dispute. It could be restated as whether the Crown could prove, beyond reasonable doubt, that, at the time he undertook the physical acts that constituted his effort to obtain the charged consignment, the appellant either knew, or foresaw the real possibility, that the charged consignment contained a border controlled drug.
3. That was the "destination" to which the coincidence evidence would be directed in this trial. In my opinion, the other two states of mind spoken of by counsel for the appellant in this Court were at most "intermediate stops" on the way to that fact in issue, not the fact in issue itself. And so much is clear from paragraph 24 of the written submissions of the Crown at first instance about the coincidence evidence. In that sense, the other two states of mind spoken of by counsel were, in my respectful opinion, something of a distraction.
4. In reflecting upon whether the coincidence evidence possessed significant probative value in proving that fact in issue, it is instructive I think to reflect first upon the Crown case without it; in other words, the actions of the appellant in seeking to obtain the charged consignment, what was found at his home, and what he had to say in his recorded interview.
5. In my opinion, that was a reasonably weak Crown case, although one that perhaps had a cloud of suspicion swirling around it. In particular, although a tribunal of fact might be troubled by the resealable plastic bags, and the contents of the mobile phone of the appellant, one might consider that the following was a fairly well open reasonable possibility. The appellant came to be aware of the collection notice for the single charged consignment, bearing in mind that it had been placed in the unlocked letterbox of Unit 4, no doubt in close proximity to his own letterbox, and, in light of the close similarity of the name of the consignee to his own, decided innocently to attend a post office in order to seek access to it.
6. That situation can be sharply contrasted with one in which the tribunal of fact was aware of the earlier, uncharged consignment, the efforts of the appellant to obtain it, and the many important similarities between it and the charged consignment.
7. The very powerful inference arises, in my opinion, that the sending of the two parcels, and the response of the appellant to them, was no coincidence at all; on the contrary, the appellant was part of a scheme with a particular repeated modus operandi to import cocaine - a valuable contraband when in significant quantities - into Australia from the RSA, including a simplistic effort to distance the consignee from the appellant. And that inference directly informs proof of the mental element necessary for the count.
8. Understood in that way, there is no circularity or "bootstrapping" in the appropriate use of the coincidence evidence to prove the mental element of the count: it is a matter of the tribunal of fact reflecting on the totality of the evidence, without presuppositions. And as the definition of "probative value" extracted above makes clear, central to that concept is the potential of evidence to prove something that is in dispute. In other words, one does not need to engage in assumptions of guilt for coincidence evidence to have weight; the whole question is the degree to which the coincidence evidence may be capable of assisting to prove the count, without first assuming that it does.
9. In my opinion, the first leg of the statutory test is well satisfied: the coincidence evidence about the uncharged consignment - including, of course, the efforts of the appellant to obtain it, without any consignment note having been placed in any letterbox at that stage - possessed significant probative value. That was most powerfully because of the many similarities between the two consignments, most fundamentally the presence of a significant quantity of cocaine secreted in each of them.
10. Turning now to the possibility of unfair prejudice, I accept that, very often, when a jury comes to know of other allegedly discreditable conduct on the part of an accused person, above and beyond the count or counts in the indictment, that gives rise to such a possibility. And I accept that it arose in this case, in that a member of the jury may have been tempted to use the coincidence evidence not to inform the question of whether the mental element of the count had been proven to the criminal standard, but in a prejudicial way. One such way that springs to mind is coming to the view that the appellant was merely a criminal who associated himself with prohibited drugs, rather than focusing on the question of whether the mental element of the count had been proven beyond reasonable doubt.
11. Even so, whilst I accept that that danger existed, because of my opinion about the powerful probative value of the coincidence evidence, and the important change that it brought to the strength of the Crown case, I consider that that danger was indeed substantially outweighed by the probative value of the coincidence evidence.
12. As against the possibility that my approach based upon consideration of the Crown case with and without the coincidence evidence is idiosyncratic, for completeness I shall adopt a more orthodox analysis. That is in accordance with the decision of R v Gale; R v Duckworth, which sets out a number of steps for reflecting upon the admissibility of coincidence evidence at [31].
13. As for the first step: the particular state of mind of a person that the Crown sought to prove was the crucially disputed mental element of the count.
14. As for the second step: the two or more events from the occurrence of which the Crown sought to prove that mental element was the sending of the two consignments, their arrival in Australia one after the other, and the efforts by the appellant to obtain them.
15. As for the third step: as I have shown, there was a multitude of similarities between the two consignments, and some similarities in the ways in which the appellant sought to obtain possession of them.
16. As for the fourth step: no point has ever been taken about lack of reasonable notice having been afforded to the appellant.
17. As for the fifth step: my evaluation is that the evidence about the uncharged consignment, in combination with the evidence about the charged consignment, certainly possessed significant probative value, for the reasons already given.
18. As for the sixth step: again, for reasons already given, although I accept that admission of evidence about the uncharged consignment gave rise to a risk of prejudice to the appellant, I am affirmatively satisfied that the probative value of the evidence about the uncharged consignment substantially outweighs any prejudicial effect that the admission of that evidence may have had on the appellant.
19. In short, reflecting on the question of admissibility afresh in applying the correctness standard, and approaching it in two different ways, I consider that the statutory test was indeed passed, with the result that my own opinion is that the decision of the trial judge was correct.
20. For those reasons, I would not uphold this ground of appeal.

Proposed orders 1. Leave to appeal out of time granted. 2. Appeal dismissed.

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