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Court of Criminal Appeal 28 August 2007

STEVENS v REGINA

[2007] NSWCCA 252

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE EVIDENCE TENDENCY AND COINCIDENCE PRINCIPLES TO APPLY SUBSTANTIAL AND RELEVANT SIMILARITY

Citation: Stevens v Regina [2007] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 28 August 2007
Judges: McClellan CJ at CL, Hoeben J, Hall J

Background

The appellant pleaded guilty in the District Court to supplying a large commercial quantity of cocaine between 24 February and 5 March 2005. The Crown case rested on two separate acts of cocaine supply forming part of a single criminal enterprise: one on 25 February 2005 and another on 4 March 2005. The combined quantity of the two transactions amounted to just under two kilograms, which exceeded the threshold for a "large commercial quantity" under the Drug Misuse and Trafficking Act 1985.

The appellant did not contest his involvement in the 4 March transaction but disputed participation in the 25 February supply. Because the large commercial quantity threshold depended on the accumulation of both transactions, whether the sentencing judge could find that involvement beyond reasonable doubt was central to the entire sentencing exercise.

Berman DCJ found, beyond reasonable doubt, that the appellant had participated in both acts of supply and sentenced him to a non-parole period of seven years, with a total sentence of eleven years. The appellant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred in applying the tendency and coincidence evidence provisions in sections 97, 98, and 101 of the Evidence Act 1995 (NSW)
  • Whether evidence of the 4 March supply was properly used as coincidence evidence to establish participation in the 25 February supply
  • Whether the sentencing judge improperly raised admissibility arguments that the prosecution had not itself advanced
  • Whether the note evidence was wrongly admitted as evidence of an admission, given that authorship was not established
  • Whether the overall finding of participation in the 25 February supply was open beyond reasonable doubt
  • Whether a less severe sentence was warranted

Decision

The Court of Criminal Appeal agreed with Hall J's reasons. The central question was whether the sentencing judge's use of the 4 March transaction to support an inference about the 25 February transaction involved impermissible tendency reasoning or, alternatively, permissible coincidence reasoning under section 98 of the Evidence Act.

Hall J held that no objection to the evidence as tendency or coincidence evidence had been raised at first instance under sections 97, 98, or 101. In any event, the evidence of the two transactions was substantially and relevantly similar, and the circumstances in which they occurred were substantially similar, satisfying the requirements for coincidence evidence under section 98.

The court rejected the submission that using the 4 March transaction to reinforce the inference about 25 February involved impermissible "backwards" reasoning. The court was entitled to evaluate the probative value of the second transaction in light of the first, treating the former as coincidence evidence that reinforced what was already a strong circumstantial case. That combined reasoning justified the finding beyond reasonable doubt.

On the note evidence, Hall J concluded that the finding regarding 25 February participation did not depend on that note at all, so it was unnecessary to resolve the admissibility question. Ground 4, challenging the severity of the sentence, was not independently argued and rose or fell with the other grounds.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under section 98 of the Evidence Act 1995, coincidence evidence is admissible to prove that a person did a particular act where the circumstances of two events are substantially and relevantly similar; the Court of Criminal Appeal confirmed that test was satisfied on these facts.
  • A sentencing court may accumulate the quantities from separate acts of supply, each forming part of a single criminal enterprise, to establish that a large commercial quantity was supplied (following Hamzy and Goodfellow).
  • No error was established where an appellant failed to raise any objection at first instance under sections 97, 98, or 101 of the Evidence Act, undermining the appellate challenge to the admissibility of the evidence on those grounds.
  • Using evidence of a second transaction to reinforce a strong circumstantial case about a first transaction does not necessarily constitute impermissible tendency reasoning; such use may properly constitute coincidence reasoning within section 98.
  • Where a finding of fact is supported independently of disputed evidence, an appellate court need not resolve the admissibility of that disputed evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), sections 97, 98, 101, 136
- Drug Misuse and Trafficking Act 1985 (NSW), Schedule 1, Column 5
- Law Reform (Controlled Operations) Act 1997 (NSW)

Cases:
- Regina v Hamzy (1994) 74 A Crim R 341
- Regina v Goodfellow (1994) 33 NSWLR 308
- Regina v Fletcher [2005] NSWCCA 338
- Regina v Zhang [2005] NSWCCA 437