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Court of Criminal Appeal 18 April 2018

R v Chase (a pseudonym)

[2018] NSWCCA 71

Drugs
APPEAL [2006] NSWCA 112 TENDENCY EVIDENCE COINCIDENCE EVIDENCE CRIMINAL PROCEEDINGS

Citation: R v Chase (a pseudonym) [2018] NSWCCA 71
Court: NSW Court of Criminal Appeal
Date: 18 April 2018
Judge(s): Basten JA (principal judgment); Johnson J and Campbell J (agreeing)

Background

The respondent faced two charges of possessing prohibited drugs for supply under the Drug Misuse and Trafficking Act 1985 (NSW). He was arrested while travelling as a front passenger in a taxi on the Central Coast. Police found drugs under his seat, digital scales, a large sum of cash, three mobile phones, and what appeared to be drug "tick lists" in his hotel room. His apparent defence was that the drugs found in the taxi were not his.

To counter that defence, the prosecution sought to tender evidence of an earlier incident in which the respondent was apprehended by police while carrying a bag of drugs. He had claimed at the time that the bag belonged to a companion and that he had run only because he was aware of an outstanding warrant, not because he knew the bag contained drugs. He was subsequently convicted of supply offences arising from that incident, though he had foreshadowed an appeal from that conviction.

The trial judge (Craigie DCJ in the District Court) excluded the earlier incident as tendency or coincidence evidence, finding that the prejudice to the respondent was "invidious" and was not substantially outweighed by the probative value of the evidence. The Director of Public Prosecutions appealed that interlocutory ruling to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW).

  • Whether the Court of Criminal Appeal had jurisdiction under s 5F(3A) of the Criminal Appeal Act 1912, specifically whether rejection of the evidence "eliminated or substantially weakened" the prosecution case.
  • Whether significant probative value in excluded evidence is, by itself, sufficient to establish that its rejection substantially weakens the prosecution case for jurisdictional purposes under s 5F(3A).
  • Whether the trial judge erred in finding that the prejudicial effect of the tendency/coincidence evidence was not substantially outweighed by its probative value under s 101(2) of the Evidence Act 1995 (NSW).
  • Whether prejudice under s 101(2) is limited to the risk of the jury misusing the evidence, or whether it encompasses wider considerations such as the procedural unfairness arising from the respondent's pending appeal against the earlier conviction.

Decision

Jurisdiction: the "substantially weakens" threshold

Basten JA rejected the proposition that significant probative value in excluded evidence automatically satisfies the jurisdictional requirement that rejection "substantially weakens" the prosecution case. That reading, drawn from statements in earlier decisions including R v Matonwal and Amood, was characterised as a misuse of those statements by extracting them from their factual context and treating them as universal legal principles. The two tests are neither equivalent nor co-extensive. Significant probative value is a necessary but not sufficient condition. In the present case, however, the Court was satisfied that the evidence was likely to form an important part of the prosecution case and its exclusion would substantially weaken it, satisfying the jurisdictional threshold.

Nature of the appeal

The Court noted some uncertainty about whether the House v The King principles governing appellate review of discretionary decisions apply straightforwardly to admissibility rulings under s 101(2), which requires an evaluative judgment rather than the exercise of a true discretion. Basten JA declined to resolve the question in the abstract, preferring to focus on the specific errors raised in the ruling under review.

The trial judge's error on prejudice

Basten JA found that the trial judge fell into error by treating the respondent's pending appeal against his earlier conviction as a source of "invidious" prejudice under s 101(2). The prejudice contemplated by s 101(2) is the risk that the jury will misuse the evidence, for instance by treating it as proof of bad character and reasoning impermissibly to guilt. Procedural unfairness arising from the timing of an appeal is a separate matter and not the kind of prejudice s 101(2) addresses. Protective measures such as directions to the jury, or deferring the trial, could address legitimate concerns without excluding the evidence altogether.

Orders and further consideration

The Court allowed the appeal and set aside the exclusion order. However, it declined to go further and declare the evidence positively admissible, as the prosecution had sought. Because the hearing had focused narrowly on the particular prejudice identified by the trial judge, other relevant considerations had not been fully canvassed. The matter was therefore returned for further consideration at trial rather than resolved finally on appeal.

Orders Made

  • The appeal by the Director of Public Prosecutions against the District Court judgment of 27 November 2017 was allowed.
  • The order excluding the proposed tendency and coincidence evidence was set aside.

Key Takeaways

  • Significant probative value in excluded evidence does not automatically establish that its rejection "substantially weakens" the prosecution case for the purposes of s 5F(3A) of the Criminal Appeal Act 1912. The two tests are related but distinct, and probative value is a necessary, not sufficient, condition for satisfying the jurisdictional threshold.

  • The Court of Criminal Appeal confirmed that the relevant prejudice under s 101(2) of the Evidence Act 1995 is the risk of the jury misusing the evidence impermissibly, not procedural unfairness arising from collateral circumstances such as a pending appeal against an earlier conviction on which the tendency evidence is based.

  • Where a trial judge treats an irrelevant form of prejudice as the basis for excluding tendency or coincidence evidence, that constitutes a legal error capable of vitiating the ruling on appeal.

  • Even where an appellate court identifies error in an exclusion ruling, it retains a discretion under s 5F(5) of the Criminal Appeal Act to decline to declare evidence positively admissible, particularly where relevant considerations have not been fully argued before it.

  • Abstract classification of an admissibility ruling as "discretionary" or "evaluative" for appellate review purposes was described as less useful than examining the specific errors alleged in the decision under challenge.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Evidence Act 1995 (NSW), ss 97, 98, 101, 137

Cases
- R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Hughes v The Queen [2017] HCA 20; 92 ALJR 52
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Matonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
- Saoud v R (2014) 87 NSWLR 481; [2014] NSWCCA 136
- Mol v R [2017] NSWCCA 76
- R v SJRC [2007] NSWCCA 142
- R v SG [2017] NSWCCA 202
- R v MM [2014] NSWCCA 144
- Glover v R; Stuart v R [2015] NSWCCA 285
- The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
- R v Ollis [1900] 2 QB 758