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Court of Criminal Appeal 19 November 2010

RADI v R

[2010] NSWCCA 265

Drugs
CRIMINAL LAW CONVICTION APPEAL SUPPLY OF PROHIBITED DRUG WHETHER SUCH EVIDENCE RELEVANT

Citation: RADI v R [2010] NSWCCA 265
Court: New South Wales Court of Criminal Appeal
Date: 19 November 2010
Judges: Simpson J, Hoeben J, RA Hulme J

Background

The appellant was tried in the District Court on a charge of supplying not less than a commercial quantity of methylamphetamine (991 grams) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The prosecution arose from a police surveillance operation in which officers observed the appellant's vehicle in close proximity to that of a known suspect, followed by what appeared to be a handover of a black sports bag. When police stopped the appellant's vehicle shortly after, the bag was found on the front seat containing the methylamphetamine.

Police also discovered $2,800 in cash, four mobile phones, and a box of .32 Winchester cartridges (capable of being used in handguns) in the passenger door pocket. No handgun was found. The appellant gave evidence denying any knowledge of the drugs, claiming he noticed the black bag only after stopping at traffic lights, shortly before police intercepted him.

The jury convicted, and the appellant received a sentence of 10 years' imprisonment with a non-parole period of 7 years. He appealed against conviction on three grounds, all directed at the admission and treatment of the bullets evidence.

  • Whether the trial judge erred in admitting evidence of a box of bullets found in the appellant's car.
  • Whether the trial judge erred in admitting expert or descriptive evidence that those bullets were predominantly used in handguns.
  • Whether the trial judge erred in failing to give the jury a "tendency direction" (a warning that the evidence could not be used to reason that the appellant had a general criminal tendency or a history of drug supply).

Decision

Grounds 1 and 2: Admissibility of the bullets evidence

The central question was whether the bullets were relevant to an issue in the trial or whether they went only to show criminal propensity. The court held that the critical issue was the appellant's knowledge of the drugs in the bag. Because the appellant declined to participate in a police interview, the Crown had to establish knowledge through circumstantial evidence. The bullets, combined with the inference that handguns and ammunition are commonly associated with drug supply operations, formed one circumstance from which the jury could draw conclusions about the appellant's knowing involvement.

The court distinguished the leading High Court authority of Thompson and Wran v R (1968), in which possession of criminal tools was held inadmissible without a demonstrated link to the specific offence charged. Simpson J and RA Hulme J both noted that Thompson and Wran concerned tools of an offence already committed. Here, the charge involved possession "for the purpose of supply," connoting a future activity. Possession of ammunition capable of being used in a handgun, in the context of an alleged future supply purpose, was properly characterised as an "indicium of supply" and was therefore directly relevant. The trial judge did not err in admitting the evidence on either ground.

Ground 3: Failure to give a tendency direction

The court rejected the argument that the trial judge should have warned the jury against using the bullets (along with the cash and mobile phones) as evidence of a general tendency toward criminal behaviour. No suggestion had been made at trial that the appellant had previously committed any offence, and the Crown had effectively accepted his good character. In those circumstances, directing the jury not to reason that the appellant had supplied drugs on prior occasions would have been artificial and potentially confusing rather than protective. The existing directions given by the trial judge were sufficient to address any residual risk of impermissible reasoning.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Evidence of items found with an accused (here, bullets) is admissible where those items are relevant to an issue actually in dispute at trial, such as the accused's knowledge of drugs in their possession, rather than simply tending to show criminal propensity.
  • The Court of Criminal Appeal distinguished Thompson and Wran v R on the basis that the principles governing admissibility differ when the relevant issue is the accused's knowledge rather than the commission of a past act.
  • Under the Drug Misuse and Trafficking Act 1985 (NSW), where the quantity of drug triggers the deeming provision in s 29, the Crown must still prove to the criminal standard that the accused knowingly possessed the drug, following He Kaw Teh v The Queen (1985).
  • Ammunition capable of use in a handgun, found in a vehicle at the time of an alleged drug supply, can constitute an "indicium of supply" where the charge involves a future purpose of supplying drugs.
  • No tendency direction is required where the evidence in question has a rational connection to a live issue at trial and no suggestion of prior offending has been raised by either party.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(2), 29, 33(1)(a), 33(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division IA, Part 4, Table Item 18

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