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District Court 22 April 2016

R v Smith

[2016] NSWDC 92

Drugs
CRIMINAL

Citation: R v Smith [2016] NSWDC 92
Court: District Court of New South Wales
Date: 22 April 2016
Judge(s): Judge S Norrish QC

Background

The accused, a British citizen living in West Africa, faced trial in the District Court on a charge of importing a commercial quantity of methamphetamine into Australia. He was arrested in October 2013 at a Sydney hotel shortly after a suitcase containing the drug was delivered to his room. The same accused had been tried separately, and found guilty, on a charge of possessing child abuse material arising from the same arrest.

The prosecution served a tendency notice seeking to rely on several categories of prior conduct to prove guilt. Those categories included: the activities of two other men (referred to as Niko and Van Zwam) who were arrested importing methamphetamine in March 2013; the accused's own travel to Australia in March 2013; and the accused's travel to Indonesia in May and June 2013. The prosecution argued this evidence established a tendency on the accused's part to act in a particular way and to hold a particular state of mind.

The accused applied to exclude all of this material. The admissibility question was determined on the voir dire (a preliminary hearing before the trial judge, outside the jury's presence), during which the court received extensive documentary evidence and heard oral evidence from Van Zwam and a Federal Police officer.

Legal Issues

  • Whether the tendency evidence had "significant probative value" as required by section 97(2) of the Evidence Act 1995 (NSW)
  • Whether, even if significant probative value existed, the evidence should be excluded because its probative value did not substantially outweigh its prejudicial effect under section 101(2)
  • Whether the evidence should be excluded under section 137 because its probative value was outweighed by the danger of unfair prejudice
  • Whether evidence of the conduct and state of mind of Niko and Van Zwam could establish the accused's alleged tendencies
  • Whether the accused's own travel to Australia in March 2013 and related admissions were admissible for tendency purposes
  • Whether evidence of the accused's travel to Indonesia was admissible for tendency or contextual purposes

Decision

Issue 1: Evidence relating to Niko and Van Zwam

The court found that the evidence of Niko's and Van Zwam's recruitment, drug possession, and dealings with investigators did not have significant probative value to establish the accused's alleged tendencies (at [102]-[103]). Section 97 directs attention to the tendency of the accused, not to the conduct or state of mind of others. The Crown sought to use the actions of Niko and Van Zwam to prove the accused's tendency, but there was no evidence that the accused knew the relevant facts about their conduct consistent with the allegations against him (at [100]-[102]). Van Zwam's evidence established his own actions and his connection with the accused, but did not establish any admission of knowledge or recklessness on the accused's part, nor any participation in discussions about the criminal enterprise (at [103]-[104]).

The post-event Word documents and other representations found on the accused's laptop also fell short. The court held those materials could not reasonably establish an admission of relevant knowledge about the state of mind or actions of Niko and Van Zwam at the time the accused entered Australia (at [105]-[106]).

Issue 2: Exclusion under sections 101(2) and 137

Even if the evidence of Niko and Van Zwam's conduct had significant probative value, the court would have excluded it under both section 101(2) and section 137 (at [114]). Admitting this evidence would create a substantial risk of guilt by association that could not realistically be removed by jury directions (at [115]). It would also require the jury to effectively retry the criminal liability of Niko (who was acquitted and unavailable) and Van Zwam (who pleaded guilty while maintaining a state of mind potentially inconsistent with that plea), and those issues would overwhelm the real questions in the case (at [115]-[116]). The court concluded it was impossible to remove the relevant risks of misuse of the evidence by the jury (at [123]).

Issue 3: The accused's own travel to Australia in March 2013

The court reached a different conclusion in respect of the accused's own prior conduct. Evidence of the accused's trip to Australia in March 2013 and his subsequent admissions, representations, and Word documents about that trip was found to have significant probative value for tendency purposes (at [120]). This evidence was directed at the accused's own prior conduct and state of mind, not at the conduct of others, and the risk of prejudice was substantially outweighed by the probative value (at [122]). The court admitted this evidence and found it could be adequately managed by appropriate jury directions (at [122]-[124]).

Issue 4: The accused's travel to Indonesia

The Indonesia trip evidence was excluded. The surrounding detail was too vague, gap-ridden, and the accused's own representations too incomplete to satisfy the significant probative value threshold under section 97 (at [126]). Even if probative value had been established, the evidence would have been excluded under section 101(2) and section 137 because it would have required the jury to engage in speculation rather than proper inference drawing, and the risk of prejudice was not substantially outweighed (at [127]-[128]). The court also declined to admit this evidence for contextual purposes, finding that the risk of unfair prejudice under section 137 remained regardless of the basis for admission (at [129]-[131]).

Orders Made

  • Evidence of the accused's previous travel to Australia in March 2013 is admissible for tendency purposes.
  • Evidence of the conduct, recruitment, and drug possession of Niko and Van Zwam is inadmissible.
  • Evidence of the accused's travel to Indonesia is inadmissible for tendency or contextual purposes.

Key Takeaways

  • Under section 97 of the Evidence Act 1995, tendency evidence must establish the tendency of the accused. Evidence of the conduct and state of mind of third parties, even persons connected to the accused, does not satisfy the significant probative value requirement where there is no evidence the accused knew the relevant facts about those persons' conduct consistent with the charges (at [100]-[103]).

  • A distinction exists between evidence of an accused's own prior conduct (which may meet the significant probative value threshold) and evidence of the conduct of associated persons (which carries a substantially higher risk of guilt by association). The District Court drew this line clearly in excluding material relating to Niko and Van Zwam while admitting evidence of the accused's own March 2013 travel (at [120]-[122]).

  • Where admitting tendency evidence would require a jury to effectively retry the criminal liability of third parties, particularly where one has been acquitted and the other's evidence is potentially inconsistent with his own guilty plea, the risk of prejudice under sections 101(2) and 137 will be difficult to overcome (at [115]-[116]).

  • Post-event records and communications created by an accused, including Word documents and social media material, may constitute admissions relevant to the accused's own prior conduct, but their probative value as to what the accused knew at an earlier point in time is limited by their lack of contemporaneity with the conduct in question (at [105]).

  • Evidence that lacks significant probative value for tendency purposes will not be rescued by characterising it as "contextual" evidence. Where the risk of unfair prejudice under section 137 attaches to the evidence itself, admitting it on a different forensic basis does not neutralise that risk (at [129]-[131]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- R v AW [2009] NSWCCA 1
- R v Dupas [2012] VSCA 328
- R v IMM [2016] HCA 14
- R v Pfennig ((1995) 182 CLR 461
- R v Shamouil [2006] NSWCCA 112
- R v XY [2013] NSWCCA 121
- R v Yates [2002] NSWCCA 520