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District Court 10 May 2019

R v Kaddour

[2019] NSWDC 243

Drugs
TENDENCY EVIDENCE TEMPORAL GAP RELIED UPON TO ESTABLISH IDENTITY COINCIDENCE EVIDENCE ALTERNATIVE HYPOTHESIS SIGNIFICANT PROBATIVE VALUE.

Citation: R v Kaddour [2019] NSWDC 243
Court: District Court of NSW
Date: 10 May 2019
Judge(s): Bright DCJ

Background

The accused faced trial on judge alone on charges relating to the production and possession of prohibited drugs, including approximately 24.8 kg of 2-CB, 2.8 kg of methylamphetamine and 41.26 g of MDA, all found during a search warrant executed in December 2011 at a residential garage in Berkeley Vale on the Central Coast. The accused was not present when the warrant was executed, but the Crown alleged a connection through contact details found on a co-occupant's phone and an email forwarded to the accused.

Before any evidence was called, the Crown applied under sections 97 and 98 of the Evidence Act 1995 to lead tendency and coincidence evidence. The evidence sought to be admitted related to the accused's subsequent drug manufacturing activities at Bingara in 2015, for which he had already pleaded guilty to charges involving the manufacture of 15.32 kg of MDA and related precursor substances.

Legal Issues

  • Whether the 2015 Bingara events had significant probative value as tendency evidence to prove: (a) the identity of the person responsible for the 2011 Berkeley Vale offences; (b) the extent of the accused's role at Berkeley Vale; and (c) to rebut any innocent explanation for DNA transfer.
  • Whether the approximately four-year temporal gap between the 2011 and 2015 events reduced the probative value of the tendency evidence.
  • Whether the 2015 Bingara events had significant probative value as coincidence evidence in relation to the MDA counts, particularly having regard to alternative explanations for the presence of the accused's DNA at both locations.

Decision

Issue 1: Tendency evidence and identity

The court found that the tendency evidence did not have significant probative value insofar as the Crown relied upon it to establish the identity of the person responsible for producing and possessing the drugs at Berkeley Vale. The features of drug manufacture at Bingara did not rise above what would commonly be present at premises used for drug manufacture (at [82]). Tendency evidence directed at identity requires more than shared characteristics that are simply features of the offence type.

Issue 2: Tendency evidence and role/DNA

The court accepted the tendency evidence for two narrower purposes: rebutting any assertion that the accused's role at Berkeley Vale was only minor, and rebutting any innocent explanation for DNA transfer (at [83], [86]). The Crown's case was wholly circumstantial, which reinforced the significant probative value of the tendency evidence for those purposes.

Issue 3: Temporal gap

The court rejected the submission that the four-year gap between the 2011 and 2015 events critically weakened the tendency evidence. The accused had transported chemicals capable of being used in MDA manufacture to Bingara before leaving Australia in mid-2012, and resumed involvement after returning in February 2014 (at [79]-[80]). The Bingara episode also represented extended, repeated conduct rather than a single incident, providing a rational basis to infer an enduring tendency (at [81]).

Issue 4: Coincidence evidence and DNA

The court admitted the Bingara evidence as coincidence evidence in relation to the MDA counts. The key factor was the location of a DNA profile matching the accused on items directly associated with drug manufacture at both Berkeley Vale and Bingara, including protective equipment such as gloves and a breathing mask (at [109]). General similarities in the drug manufacture process alone were insufficient for improbability reasoning, but the DNA on manufacture-related items at both locations crossed the threshold of significant probative value (at [108]-[109]). The difference between a plastic glove at Bingara and latex gloves at Berkeley Vale did not diminish that probative value (at [110]-[112]), nor did the alternative innocent explanations advanced by the defence, given the multiple manufacture-associated items bearing the accused's DNA profile at Berkeley Vale (at [114]).

Orders Made

  • The evidence of the events at Bingara in 2015 is admissible as tendency evidence in relation to counts 1 to 5, for the limited purpose of rebutting any assertion that the accused had only a minor role in production and possession of drugs at Berkeley Vale and any innocent explanation for DNA transfer.
  • The evidence of the events at Bingara in 2015 is admissible as coincidence evidence in relation to counts 4 and 5.

Key Takeaways

  • Tendency evidence offered to prove identity requires the proposed tendency to do more than replicate features that are common to the type of offending alleged. Where the identified similarities are ordinary characteristics of drug manufacture premises generally, the evidence will not reach the threshold of significant probative value for identity purposes (at [82]).

  • A temporal gap between the charged conduct and the tendency evidence does not automatically reduce probative value. The District Court here treated intervening conduct, including transporting precursor chemicals and resuming activity after returning to Australia, as context that preserved the rational connection across a four-year period (at [79]-[80]).

  • Under section 98 of the Evidence Act 1995, coincidence reasoning directed at improbability gains significant probative value when the accused's DNA appears on items functionally linked to the alleged offending at more than one location, even where those items differ in type or description (at [109]-[112]).

  • Alternative hypotheses about innocent DNA transfer do not automatically defeat a finding of significant probative value. Where multiple manufacture-associated items at the same premises carry the accused's DNA profile, the cumulative effect of that evidence can sustain improbability reasoning despite innocent transfer arguments (at [114]).

  • Where a trial proceeds judge alone, the parties may agree that the prejudicial effect limiter in section 101(2) of the Evidence Act 1995 need not be separately applied, because the risks that provision addresses do not arise in the same way without a jury (at [85], [116]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- BC v R [2015] NSWCCA 327
- CW v The Queen (2010) VSCA 288
- El-Haddad v The Queen (2015) 88 NSWLR 93;
- Hughes v The Queen [2017] HCA 20
- IMM v The Queen [2016] HCA 14; 257 CLR 300
- NS v R [2012] NSWCCA 9
- Page v The Queen [2015] VSCA 357
- R v Duckworth [2012] NSWCCA 174
- R v Ford (2009) 201 A Crim R 451
- R v Gale; R v Duckworth [2012] NSWCCA 174
- R v LN; R v AW (No. 1) [2017] NSWSC 119
- R v RN [2005] NSWCCA 413
- Selby v R [2017] NSWCCA 40