The Queen v Hiko [2018] NTSC 35

DSJ v The Queen; NS v The Queen [2012] NSWCCA 9; (2012) 215 A Crim R 349, Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, Gilbert v The Queen (2000) 201 CLR 414, Hughes v The Queen [2017] HCA 20, R v AH (1997) 42 NSWLR 702, R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451, R v Jacobs (No 5) [2013] NSWSC 946, R v Lock (1997) 91 A Crim R 356, R v Lockyer (1996) 89 A Crim R 457, R v Mokbel (2009) 26 VR 618, R v Zhang [2005] NSWCCA 437; (2005) 227 ALR 311, Reza v Summerhill Orchards Ltd [2013] VSCA 17; (2013) 37 VR 204, The Queen v Shaun Martin [2018] NTSC 19, considered.

Crown: Office of the Director of Public Prosecutions

The Queen v Hiko [2018] NTSC 35

[1] The accused is charged by indictment dated 3 January 2018 with the supply of a commercial quantity of cannabis contrary to s 5(1) of the Misuse of Drugs Act (NT).

[2] In its relevant parts, the Crown case against the accused is that on or about 20 April 2017 a third person came into possession of a commercial quantity of cannabis contained in four separate packages. The accused drove that third person to the Darwin Airport on 21 April 2017. The third person was booked on a flight to Alyangula, which is a township on Groote Eylandt. A drug detection dog gave a conditioned response to the third person's baggage, the baggage was searched and the cannabis was found, together with 700 small and empty clip seal bags. Police arrested the third person. The collective weight of the cannabis was 602.17 g.

[3] The accused's fingerprint was found on one of the packages containing the cannabis. The accused's residence was subsequently searched and his fingerprints were found on a Tupperware container holding 27.57 g of cannabis, scales and clip seal bags, and on the clip seal bag in which the 25.57 g of cannabis was stored.

[4] The Crown has served notice pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act (NT) ("ENULA") that it intends to adduce evidence of a tendency on the part of the accused to act in a particular way or to have a particular state of mind. The notice provides that the evidence relates to the question whether the accused intentionally supplied a commercial quantity of cannabis plant material to the third person.

[5] The tendencies sought to be proved are that the accused had: (a) a tendency to engage in the supply of cannabis plant material by sourcing the material and using other people to transport and/or on-supply the cannabis on his behalf; and (b) a willingness to supply cannabis plant material to other people.

[6] The evidence sought to be adduced relates to 12 acts of the supply or purchase of cannabis for which the accused was found guilty in this Court on 7 August 2014. Those acts may be summarised as follows:

• (a) the supply of 91.64 g of cannabis to a person in November 2013 for the purpose of on-supply to individuals on Groote Eylandt, which cannabis was intercepted at Darwin Airport;

• (b) the supply of 84 g of cannabis to a person in November 2013 which was on-supplied to individuals in Wadeye, and for which profits were transferred to a bank account belonging to the accused's wife;

• (c) the supply of 139.42 g of cannabis to a person in December 2013 for the purpose of on-supply to individuals on Goulburn Island, which cannabis was intercepted at Darwin Airport;

• (d) the supply of 84 g of cannabis to a person for the purpose of on-supply to individuals on Bathurst island;

• (e) the supply of 437.66 g of cannabis to persons in December 2013 for the purpose of on-supply to individuals on Groote Eylandt;

• (f) the supply of 112 g of cannabis to a person in December 2013 for the purpose of on-supply to individuals in Galiwinku, and for which profits were returned to the accused;

• (g) the supply of 56 g of cannabis to a person for the purpose of on-supply to individuals in Wadeye, on the arrangement that profits would be returned to the accused;

• (h) the supply of 112 g of cannabis to a person in December 2013 for the purpose of on-supply to individuals in Wadeye;

• (i) the supply of 28 g of cannabis to a person in December 2013 for the purpose of on-supply to individuals in Batchelor;

• (j) the purchase by the accused of one pound of cannabis from a person in Melbourne in January 2014, which cannabis was intercepted by police at a post office in the course of being sent from Melbourne to Darwin;

• (k) in January 2014 the accused made arrangements to supply the cannabis sourced in Melbourne to two persons; and

• (l) in January 2014 the accused made arrangements to supply 144.51 g of cannabis to a person, and was arrested in the course of that supply.

[7] By reference to those acts, the accused pleaded guilty to unlawfully supplying a commercial quantity of cannabis between 1 November 2013 and 29 January 2014, and to receiving $22,320 in cash during that same period obtained directly or indirectly from the unlawful supply of a dangerous drug.

[8] The agreed facts for the purposes of the guilty plea reflected the 12 acts of supply or purchase described above. The accused was sentenced to a total effective period of imprisonment for two years commencing on 3 August 2014, with a non-parole period of 12 months.

1. Section 97 of the ENULA provides for the admissibility of tendency evidence subject to the requirements of notice and significant probative value. The Dictionary in the ENULA defines "probative value" of evidence to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". The use of "significant" as a qualifier in this context connotes something more than mere relevance, but something less than a substantial degree of relevance.[1] This resolves to a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of the fact(s) in issue.[2]

[10] In the assessment of significant probative value, the court will take into account the cogency of the evidence relating to the relevant conduct, the strength of the inference that can be drawn from the evidence concerning tendency, and the extent to which that tendency increases the likelihood that the fact in issue occurred. The tendency evidence sought to be adduced in this case has a high level of cogency, in that it was admitted by the accused in the previous proceedings and was in that sense established beyond reasonable doubt. The inference of tendency which can be drawn from that evidence is strong, as it demonstrates a course of conduct over a period of three months showing a sustained involvement in the supply of cannabis.

[11] There were 11 separate acts of supply during that three month period. The fact that approximately three years elapsed between that course of offending and the offending the subject of the present charge does not undermine the strength of the inference which may be drawn concerning tendency. The accused was arrested in January 2014 and not sentenced until August 2014. He was then imprisoned for a period of 12 months after that time, and would have been released in August 2015. This present offending is alleged to have occurred approximately 18 months after that. It is also the case that the delay is not of such length as to suggest that the prior conduct was a temporally distant and isolated aberration.

[12] The acts relied upon by the Crown to establish the tendency show in large part a high degree of specificity of conduct and a high degree of similarity between the different occasions. The persons to whom the cannabis was supplied were generally indigenous people. The cannabis was then transported to remote communities for the purpose of sale. The profit in a previously agreed amount was then returned to the accused. Although it is not necessary for the Crown to establish a pattern of conduct or modus operandi, the degree of specificity or similarity, both between the separate acts of supply involved in the previous offending and between those acts and the facts alleged in the present charge, heightens the probative value of the evidence.

1. Although tendency evidence is most commonly adduced by the Crown in cases involving allegations of sexual offending, it clearly has application to other categories of offence.[3] The rule concerning tendency evidence has been applied by this Court in charges concerning the supply of drugs.[4]

[14] It is also the case that the evidence sought to be adduced by the Crown is not disputed. While the accused disputes that the evidence is admissible for tendency purposes, there is no dispute that the acts for which he previously pleaded guilty took place. Rather, the accused contends that the evidence does not have significant probative value because there are features which differentiate the episode of prior offending from the conduct with which he is presently charged.

[15] Those features are said to be the fact that the accused pleaded guilty to the prior offending but pleads not guilty to the present charge; and the fact that a co-offender charged with the same offending with which the accused is presently charged has made a detailed statement taking responsibility for the offending and exonerating the accused. Neither of those matters bear on the assessment of the probative value of this evidence for tendency purposes. In addition, the third person's statement to police implicates the offender in the supply. That is apt to lend the tendency evidence additional probative value for the purpose of assessing the relative reliability of those inconsistent statements.

[16] In the present case, there is no doubt that the evidence concerning the acts for which the accused was previously convicted would support the tendencies alleged by the Crown. That is, in essence, a tendency to source cannabis material, to supply that cannabis material to other people, and to use those other people to transport and/or supply that material to remote communities in order to return a profit to the accused.

1. The second question is whether that tendency makes more probable the existence of a fact in issue concerning the offence with which the accused is presently charged.[5] In this case, the tendency, if proved, would strongly support the proof of a fact that makes up the offence charged. That is, that the accused supplied the drug to the third person. That is particularly so given the other evidence which the Crown seeks to adduce, including that the accused took the third person to the airport on the day in question and the presence of the accused's fingerprints on one of the packages in the third person's possession, and on the receptacles found at the accused's residence. Proof of the tendency would also be relevant to the rebuttal of any attempt to proffer an innocent explanation for the presence of the accused's fingerprints on those items.

[18] For these reasons, the tendency evidence sought to be adduced by the Crown has significant probative value.

[19] It falls then to consider whether the probative value of the tendency evidence "substantially outweighs" any prejudicial effect within the meaning of s 101 of the ENULA. That section provides, so far as is relevant for these purposes, that tendency evidence cannot be used against a defendant unless its probative value substantially outweighs any prejudicial effect.

1. There will be prejudicial effect in the relevant sense if by admission of the tendency evidence the accused is deprived of a fair trial. Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. The accused will be deprived of a fair trial if there is a real risk that the evidence will be misused by the jury in some unfair way.[6] A mere possibility is not enough; there must be a real risk of unfair prejudice by reason of the admission of the evidence.[7] In addition, the risk of prejudice must be referable to the use of the material for tendency purposes.

[21] The accused says that the risk of unfair or improper use of the evidence for tendency purposes in this matter is that the jury would be so affected by the evidence of prior criminal history that it would be led into prejudgement of the matter before all the evidence is received, or that the evidence will be given undue weight by reason of its prejudicial nature. The accused submits that this prejudicial effect cannot be addressed by appropriate directions, and outweighs the probative value of the evidence; or, in the alternative, leads to the conclusion that the probative value of the evidence does not "substantially outweigh" its prejudicial effect.

1. It is well accepted that the risk a jury may be emotionally affected or may use the evidence improperly can be accommodated by suitable directions.[8] The relevant directions in relation to tendency evidence would include the caution that the evidence cannot be used to conclude simply that the accused is the sort of person who is more likely to commit this kind of offence; and that the tendency evidence may only be taken into account if the Crown has proved that it may be inferred or concluded from those acts that the accused did in fact have the tendency asserted by the Crown. It is only if those matters are satisfied that the jury may use the tendency evidence in assessing whether the charge contained in the indictment has been proved beyond reasonable doubt.

[23] This is not a case in which the prior conduct said to establish the relevant tendency is of a repugnant character which would likely trigger revulsion on the part of jurors.

[24] Ranged against that, the probative force of the tendency evidence in the Crown case would be to provide, in the context of a charge of similar character, evidence to address any submission put on behalf of the accused that he did not provide the cannabis to the third person, and that there is an innocent explanation for the presence of his fingerprints on the various items seized. That evidentiary value is significant.

[25] I find that the probative value of the tendency evidence "substantially outweighs" any prejudicial effect within the meaning of s 101 of the ENULA.

The proof of the facts said to establish the tendencies

[26] In the event the tendency evidence is ruled admissible, the Crown seeks an advance ruling pursuant to s 192A of the ENULA that the document titled "Facts on Plea" which was tendered during the course of the accused's plea of guilty to the offending committed between November 2013 and January 2014 is admissible in the current proceedings to prove the facts said to establish the tendencies alleged.

[27] As already noted, the agreed facts for the purposes of the guilty plea reflected the 12 acts of supply or purchase which have been described above and to which the accused pleaded guilty. It is clear from the Sentencing Remarks which were made on 7 August 2014 that the Court accepted those facts as forming the basis for the conviction and sentence.

1. Section 91 of the ENULA provides that "[e]vidence of the decision, or of a finding of fact, in an Australian ... proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding". That section does not preclude the admissibility of the document titled "Facts on Plea" in these proceedings because they were not facts "in issue" in the relevant sense. The accused pleaded guilty and there was no issue in those proceedings as to his guilt or as to the conduct on which the plea was based.[9] As Button J observed in R v Jacobs (No 5):

A reading of the remarks on sentence demonstrates that the facts found were based almost exclusively on agreed facts prepared after a plea of guilty to manslaughter. The only issue was whether or not Mr Price was guilty of manslaughter by way of excessive self-defence or an unlawful and dangerous act, and Barr J stated that that disputed question boiled down to a consideration of whether or not Mr Price possessed an intention to inflict grievous bodily harm at the time of that homicide. It follows that the remarks on sentence are findings of fact admissible to prove facts that were not in issue. In other words, in my opinion, the remarks on sentence are admissible to prove all of the objective features of the manslaughter, except an intention to inflict grievous bodily harm on the part of Mr Price at the time he committed that offence.[10]

[29] The same observations may be made in relation to the present matter. As the Facts on Plea were received into evidence by agreement for the purpose of the plea of guilt and the sentencing exercise, the facts disclosed in that document are admissible in evidence without need to call witnesses to give evidence concerning those facts.

[30] The rulings on the preliminary issues are:-

(a) The evidence identified in the Crown's tendency notice is admissible for tendency purposes.

(b) The statement of facts as recorded in the "Facts on Plea" document received in proceedings 21404344 is admissible in the present proceedings to prove the facts said to establish the tendencies alleged by the Crown.

1. [1] R v Lockyer (1996) 89 A Crim R 457; R v Lock (1997) 91 A Crim R 356 at 361; R v AH (1997) 42 NSWLR 702.
2. [2] R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 at [46]; R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [52]; DSJ v The Queen; NS v The Queen [2012] NSWCCA 9; (2012) 215 A Crim R 349 at [67], [71], [72]; R v Lock (1997) 91 A Crim R 356 at 361.
3. [3] See, for example, R v Ellis [2003] NSWCCA 319 (unlawful entry and stealing); DSJ v R; NS v R [2012] NSWCCA 9; (2012) 215 A Crim R 349 (insider trading, although that case involved coincidence evidence).
4. [4] R v Perner [2017] NTSC 23; R v McKerlie [2016] NTSC 37.
5. [5] Hughes v The Queen [2017] HCA 20 at [40]- [41].
6. [6] R v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [91]-[92]; Ainsworth v Burden [2005] NSWCA 174 at [99]; Gonzales v The Queen [2007] NSWCCA 321; (2007) 178 A Crim R 232 at [70]; R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [56]; Doklu v The Queen [2010] NSWCCA 309; (2010) 208 A Crim R 333 at [45].
7. [7] R v Lisoff [1999] NSWCCA 364 at [60].
8. [8] See, for example, Gilbert v The Queen (2000) 201 CLR 414 at 425; Reza v Summerhill Orchards Ltd [2013] VSCA 17; (2013) 37 VR 204 at [50]; R v Mokbel (2009) 26 VR 618 at [90]; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 at [22], [26], [29], [38].
9. [9] R v Jacobs (No 5) [2013] NSWSC 946 at [22]- [23]; R v Shaun Martin [2018] NTSC 19 at [17].
10. [10] R v Jacobs (No 5) [2013] NSWSC 946 at [23].