Citation: R v Amante [2016] NSWDC 432
Court: District Court of New South Wales
Date: 24 October 2016
Judge(s): Judge S Norrish QC
Background
The accused faced two counts of drug supply arising from a police stop of a BMW sedan at Mascot in the early hours of 4 January 2015. Police found 81.3 grams of methylamphetamine inside a small purse located in a rear armrest compartment, and 380 grams of cannabis in a shopping bag in the rear footwell. The accused was a passenger; the vehicle was driven by another person at the accused's request, as the accused was disqualified from driving.
The prosecution case included DNA evidence linking the accused's profile to the zipper of the purse containing the methylamphetamine. Before trial commenced, two preliminary applications arose for determination: whether tendency evidence should be admitted, and whether the trial should proceed before a judge alone.
The tendency evidence the Crown sought to adduce related to an incident on 27 May 2015, approximately five months after the alleged offences, when a woman was stopped leaving the accused's Surry Hills address and found in possession of 0.4 grams of methylamphetamine. She told police she had purchased the drug from a person called "Michael" at that address. The accused's counsel confirmed the accused intended to plead guilty to supplying that quantity to the woman.
Legal Issues
- Whether the Crown's tendency evidence met the threshold of "significant probative value" required for admission under s 97 of the Evidence Act 1995
- Whether, even if that threshold were met, the tendency evidence should be excluded under s 101 because its prejudicial effect was not substantially outweighed by its probative value
- Whether leave should be granted for a trial by judge alone under the Criminal Procedure Act 1986
Decision
Issue 1: Significant probative value under s 97
The court excluded the tendency evidence primarily on the ground that it did not have significant probative value (at [28]). Several features of the evidence were weighed against it: the tendency was expressed in entirely general terms, mirroring the very act the Crown sought to prove; there was only one instance of the conduct relied upon; over five months separated that conduct from the alleged offences; and the two episodes differed markedly in scale, with 81.3 grams in one case and only 0.4 grams in the other (at [25]). The court also observed that the deeming provisions under the legislation effectively presume possession for supply once a trafficable quantity is established, reducing the significance the tendency evidence could add to proof of the central fact in issue (at [44]).
The court also noted that the tendency evidence related only to the methylamphetamine count and could not assist proof of the cannabis count, further constraining its utility (at [8]).
Issue 2: Exclusion under s 101
The court found that, even if the tendency evidence had passed the s 97 threshold, it would have been excluded under s 101(2) (at [33]). Because the trial involved a second, related count concerning cannabis, admitting tendency evidence relevant only to the methylamphetamine count risked unfair prejudice that appropriate jury directions could not adequately cure (at [32]). The existence of two related but distinct counts created a risk that the tendency evidence would colour the jury's consideration of the cannabis charge, a risk the court regarded as a vice not amenable to correction by direction alone (at [32]).
Issue 3: Trial by judge alone
The court refused leave for a judge-alone trial (at [38]). The defence relied on two grounds: that the tendency evidence was better handled by a judge than a jury, and that evidence about the vehicle's reported theft might confuse a jury. Both grounds fell away once tendency evidence was excluded and the court confirmed that the stolen-vehicle reporting was entirely irrelevant to the charges and should be kept out of evidence altogether (at [36]-[37]). With no remaining basis justifying a departure from trial by jury, the court declined to grant leave (at [38]).
Orders Made
- Tendency evidence ruled inadmissible
- Application for trial by judge alone refused; matter to proceed as a jury trial
Key Takeaways
- A single instance of the conduct relied upon as tendency evidence, occurring over five months after the alleged offence and involving a substantially smaller quantity of the same drug, is unlikely to satisfy the "significant probative value" threshold in s 97 of the Evidence Act 1995 (at [25], [28]).
- The degree of generality with which a tendency is framed matters: expressing the tendency in terms that simply restate the act alleged in the indictment weakens the claim that the evidence adds meaningful inferential weight (at [25]).
- Where tendency evidence is relevant to only one of two related counts on an indictment, the risk of unfair prejudice to the accused on the other count may be incurable by direction and may separately warrant exclusion under s 101(2) (at [31]-[33]).
- Exclusion of tendency evidence and a ruling that contested evidentiary issues were irrelevant can remove the factual foundation for a judge-alone application, leaving no sufficient basis to depart from the presumption of trial by jury (at [35]-[38]).
- Evidence that a vehicle was reported stolen, where the accused's presence in and control of that vehicle is not itself disputed, is irrelevant to drug supply charges and should be excluded from the trial entirely (at [36]-[37]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
- Criminal Procedure Act 1986
Cases
- R v Shamouil [2006] NSWCCA 112
- R v XY [2013] NSWCCA 121
- AW v The Queen [2009] NSWCCA 1
- R v Fletcher (2015) 156 A Crim R 308
- R v Zhang (2005) 158 A Crim R 504
- R v Ford [2009] NSWCCA 306
- DXJ v DPP (2012) 215 A Crim R 349
- Elomar & Ors v R [2014] NSWCCA 30