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District Court 22 October 2015

R v Thieu

[2015] NSWDC 236

Drugs
CRIMINAL LAW EVIDENCE TENDENCY EVIDENCE ADMISSIBILITY AND RELEVANCE

Citation: R v Thieu [2015] NSWDC 236
Court: District Court of New South Wales
Date: 22 October 2015
Judge(s): Whitford SC DCJ

Background

The accused was charged with one count of trafficking a marketable quantity of a controlled drug under the Criminal Code (Cth), specifically approximately 449.3 grams of pure paramethoxymethamphetamine (PMMA) found in nearly one kilogram of white crystalline powder. The Crown alleged he and his brother travelled from Melbourne to Sydney at the direction of a drug trafficking principal, collected the drugs near Bankstown, and transported them back to Melbourne for distribution. The prosecution case was entirely circumstantial, relying on telephone intercepts and physical surveillance.

The Crown sought to adduce evidence across five distinct periods spanning April 2012 to June 2013. These covered an earlier trafficking incident involving an associate, an uncompleted trafficking attempt, the charged transaction itself, events following the accused's arrest, and finally a period of admitted trafficking by the accused while on bail, for which he had already been sentenced in Victoria.

The accused objected to admission of all evidence relating to other trafficking instances, whether by the principal or by the accused himself, on the grounds of relevance, unfair prejudice, insufficient probative value, and hearsay.

  • Whether evidence of other trafficking instances (not charged in this indictment) was relevant and admissible as circumstantial evidence
  • Whether evidence of the accused's subsequent admitted trafficking offences (the fifth period) met the threshold of "significant probative value" required for tendency evidence under s 97 of the Evidence Act 1995 (NSW)
  • Whether, even if that threshold were met, the probative value of the fifth period evidence substantially outweighed its prejudicial effect, as required by s 101 of the Evidence Act
  • Whether intercept material not involving the accused's direct participation was inadmissible hearsay
  • Whether any admissible evidence should nonetheless be excluded under s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice

Decision

The court admitted the evidence relating to the first four periods. Evidence of the earlier trafficking incident, the uncompleted attempt, the charged transaction itself, and communications following the accused's arrest was accepted as admissible circumstantial evidence going to facts in issue, including the accused's knowledge and state of mind. The hearsay objection and the s 137 prejudice objection were not sustained in respect of those periods.

The court rejected the evidence pertaining to the fifth period: the accused's admitted trafficking offences committed while on bail, some months after the charged conduct. On the tendency evidence question, Whitford SC DCJ found that this subsequent conduct did not have "significant probative value" as required by s 97. The later offending was similar in character to the charge but substantially different in scope, and its capacity to rationally inform the specific states of mind (knowledge and recklessness as to the nature of the substance) at the earlier time of the charged offence was, at best, indirect and not fairly characterised as significant.

Even setting aside the s 97 threshold question, the court conducted the balancing exercise under s 101 and concluded the evidence failed that test too. The fifth period evidence carried a profound risk that a jury would reason impermissibly from the accused's admitted guilt of later offences to guilt on the charge. Whitford SC DCJ considered that risk of unfair prejudice so serious that it could not be adequately addressed by jury directions, and on that basis the probative value, even if assessed as significant, did not substantially outweigh the prejudicial effect.

Orders Made

• Admit the evidence pertaining to the first four periods
• Reject the tender of the evidence pertaining to the fifth period

Key Takeaways

  • The District Court confirmed that evidence of other participants' conduct and communications, even where the accused was not directly involved, can be admissible as circumstantial evidence in a drug trafficking trial, provided it goes to facts genuinely in issue.
  • Under s 97 of the Evidence Act 1995, tendency evidence must have "significant probative value." The court found that subsequent criminal conduct, even where similar in character, does not automatically satisfy this threshold when its connection to the specific mental states alleged at an earlier time is indirect and attenuated.
  • Where subsequent offending is substantially greater in scale than the charged conduct, its capacity to prove the accused's state of mind at the earlier time is correspondingly limited, even if the general nature of the conduct is comparable.
  • The balancing exercise under s 101 imposes a higher standard than s 137: probative value must "substantially outweigh" prejudicial effect, not merely exceed it. The court found that evidence of admitted subsequent guilt carried a profound risk of impermissible propensity reasoning that jury directions could not adequately cure.
  • Conduct occurring after the charged offence can, in principle, serve as tendency evidence or circumstantial evidence of a prior state of mind, but the court's reasoning here illustrates the limits of that approach when the temporal and contextual distance between the conduct is significant.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth) 1995, s 302.3(1)
- Evidence Act 1995 (NSW), ss 97, 101, 137

Cases
- Harriman v R (1989) 167 CLR 590
- R v Quach (2002) 137 A Crim R 345
- Gilbert v The Queen (2000) 201 CLR 414
- RH v R [2014] NSWCCA 71