AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 22 May 2006

Regina v Ngatikaura

[2006] NSWCCA 161

Also reported as (2006) 161 A Crim R 329
Drugs
CRIMINAL LAW EVIDENCE PRIOR CRIMINAL CONDUCT WHETHER TENDENCY EVIDENCE OF PRIOR DRUG SUPPLY EVIDENCE

Citation: Regina v Ngatikaura [2006] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 22 May 2006
Judge(s): Beazley JA; Simpson J; Rothman J

Background

The respondent was charged with one count of deemed supply of heroin under the Drug Misuse and Trafficking Act 1985 (NSW), following a police search of her home that uncovered 5.74 grams of heroin and associated drug paraphernalia. Her husband, charged separately with the same offence, also lived at the premises. The respondent's anticipated defence was that the drugs were in her husband's exclusive possession and that she had no knowledge of them.

The Crown sought to tender evidence of two prior heroin supply offences to which the respondent had pleaded guilty. Those offences involved actual supply to an undercover police officer at a different address, with different packaging. The Crown's stated purposes were to demonstrate that the respondent was a drug dealer by occupation and to rebut the anticipated innocent association defence.

The trial judge ruled the evidence admissible in principle but excluded it on the basis that its prejudicial effect outweighed its probative value, applying the common law balancing exercise from Harriman v The Queen. The Crown appealed, arguing the trial judge failed to identify what the prejudicial effect actually was and failed to consider whether a jury direction could have guarded against misuse.

  • Whether the Court of Criminal Appeal had jurisdiction to hear a Crown appeal against the interlocutory ruling, and whether that jurisdiction applied regardless of whether a jury had been empanelled.
  • Whether the decision to exclude the evidence "substantially weakened the prosecution's case" within the meaning of s 5F(3A) of the Criminal Appeal Act 1912 (NSW).
  • Whether the evidence of the prior supply offences was properly characterised as tendency evidence governed by ss 97 and 101 of the Evidence Act 1995 (NSW), rather than general propensity evidence subject only to ss 135 and 137.
  • Whether the general discretionary exclusion provisions in ss 135 and 137 of the Evidence Act can operate independently of the tendency provisions where those provisions apply.
  • Whether the trial judge's exclusion ruling was legally sound.

Decision

Jurisdiction (unanimous): The Court held it had jurisdiction to hear the Crown's interlocutory appeal under s 5F(3A) of the Criminal Appeal Act 1912. Evidence of the respondent's prior convictions for heroin supply would have diminished the plausibility of the innocent association defence, meaning its exclusion substantially weakened the prosecution's case. The Court also confirmed, distinguishing R v Milakovic, that s 5F(3A) permits a Crown interlocutory appeal regardless of whether a jury has been empanelled.

Characterisation as tendency evidence (majority: Simpson and Rothman JJ): The majority held that the evidence of the prior offences was tendency evidence, because its probative force depended on tendency reasoning, that is, reasoning from prior conduct to a tendency to act in a particular way. Admissibility was therefore governed exclusively by ss 97 and 101(2) of the Evidence Act, not by the general discretionary exclusion provisions in ss 135 and 137. Simpson J, with Rothman J agreeing, held there is no independent operation of ss 135 or 137 for evidence that falls within the tendency provisions.

Consequence of Crown's failure to invoke the tendency provisions: Because the Crown had not argued before the trial judge that the evidence was tendency evidence, the trial judge never considered whether it satisfied s 97 or whether s 101(2) required its exclusion. The majority held that the matter had to be remitted to the District Court for reconsideration on that basis. Rothman J noted the Crown would need to give notice particularising the tendency sought to be proved and its probative value, though the trial judge retained a discretion under s 100 to waive notice.

Beazley JA (dissenting): Her Honour characterised the evidence as general propensity evidence deployed for a purpose other than tendency reasoning, placing it outside the tendency provisions and within the scope of ss 135 and 137. On her analysis the trial judge's reasoning was inadequate because he made no specific finding about what the unfair prejudice was and did not consider whether a jury direction could have addressed any risk of misuse. Her Honour would have assessed the admissibility question directly, concluding the evidence should not be excluded under either ss 135 or 137.

Orders Made

  • Appeal allowed (by majority, Beazley JA dissenting).
  • The trial judge's decision to reject the evidence is vacated.
  • The matter is remitted to the District Court to be determined in accordance with the Court's reasons.

Key Takeaways

  • Evidence that relies on tendency reasoning, that is, reasoning from prior conduct to a disposition to act in a particular way, is tendency evidence within the Evidence Act, regardless of whether the parties framed it that way at trial.
  • Under the majority's analysis, where evidence is properly characterised as tendency evidence under ss 97 and 101 of the Evidence Act, the general exclusionary discretions in ss 135 and 137 have no independent operation.
  • A Crown appeal against an interlocutory exclusion ruling may proceed under s 5F(3A) of the Criminal Appeal Act 1912 where the exclusion substantially weakens the prosecution's case, and this jurisdiction is available whether or not a jury has been empanelled.
  • Rothman J observed that pre-Evidence Act common law principles, including those from Pfennig, may still guide admissibility analysis under the Act, with s 97's "significant probative value" threshold broadly reflecting the common law test for admissibility of similar fact evidence going to the probability of the very offence charged.
  • Where the Crown fails to invoke the tendency provisions before the trial judge, the proper course on appeal is remittal rather than substituted admissibility assessment, so that the relevant statutory framework can be applied at first instance with proper notice given.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F (including s 5F(3A) and s 5F(5))
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Evidence Act 1995 (NSW), ss 55, 56, 97, 98, 100, 101, 135, 137, Dictionary

Cases:
- Harriman v The Queen (1989) 167 CLR 590
- Noor Mohamed v The King [1949] AC 182
- Papakosmas v The Queen (1999) 196 CLR 297
- Pfennig v The Queen (1995) 182 CLR 461
- R v BD (1997) 94 A Crim R 131
- R v Blick (2000) 111 A Crim R 326
- R v Cook [2004] NSWCCA 52
- R v Cornwell [2003] NSWSC 657
- R v Filipetti (1978) 13 A Crim R 335
- R v Fletcher [2005] NSWCCA 338
- R v GK (2001) 53 NSWLR 317
- R v Harker [2004] NSWCCA 427
- R v Milakovic [2004] NSWCCA 199
- R v Quach (2002) 137 A Crim R 345
- R v Sultana (1992) 74 A Crim R 27
- R v Suteski (2002) 56 NSWLR 182
- R v WRC (2002) 130 A Crim R 89
- Steffan v R (1993) 30 NSWLR 633