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District Court 17 March 2020

R v Sukkasem

[2020] NSWDC 78

Drugs
CRIMINAL LAW EVIDENCE DRUG OFFENCES PRE

Citation: R v Sukkasem [2020] NSWDC 78
Court: District Court of New South Wales
Date: 17 March 2020
Judge(s): Abadee DCJ

Background

An accused faced two counts on an indictment arising from a police search of a Sydney apartment on 14 December 2017. Police found her in a bedroom containing 124.04 grams of methylamphetamine, packaged in 48 resealable bags, along with scales, mobile phones, notebook ledgers, a Louis Vuitton coin purse, and $5,630 in cash.

Count 1 alleged supply of a prohibited drug (methylamphetamine) under the Drug Misuse and Trafficking Act 1985 (NSW). Count 2 alleged dealing with property, the $5,630 in cash, in circumstances where there were reasonable grounds to suspect it was the proceeds of crime, under the Crimes Act 1900 (NSW).

The accused raised a pre-trial application to prevent the cash evidence from being used in relation to count 1. She did not object to the cash evidence being admitted on count 2.

  • Whether evidence of cash found on the premises was relevant to count 1 (the drug supply charge) under ss 55 and 56 of the Evidence Act 1995 (NSW), given that the Crown was relying on the statutory presumption of supply in s 29 of the Drug Misuse and Trafficking Act 1985 (NSW).
  • Whether admitting the cash evidence on count 1 would give rise to duplicity or double jeopardy, because the cash featured as a factual element of both counts.
  • Whether, under s 137 of the Evidence Act 1995 (NSW), the probative value of the cash evidence on count 1 was outweighed by the danger of unfair prejudice to the accused.

Decision

Abadee DCJ rejected the argument that the Crown's reliance on the statutory presumption in s 29 of the Drug Misuse and Trafficking Act precluded it from also relying on the cash as circumstantial evidence of supply. Section 29 creates only a rebuttable presumption. The Crown was entitled to rely on both the presumption and independent evidence tending to establish actual supply, and the accused's foreshadowing that she would not run a personal use defence did not alter this position. The court applied the principle from R v Hughes and Curtis (1983) that a party is not put to an election where it is entitled to rely on both a statutory presumption and actual evidence supporting the same fact.

The court dismissed the duplicity and double jeopardy arguments. There was only one offence charged in count 1, so no duplicity arose. As to double jeopardy, the accused could theoretically succeed on count 2 by establishing the cash was not proceeds of drug trafficking, while still being convicted on count 1 on the basis of all the other evidence. The two counts were legally distinct despite sharing a common factual element.

On the s 137 objection, the court followed the reasoning of the High Court in R v Falzon [2018] HCA 29. The probative value of the cash was high, particularly when considered alongside the scales, resealable bags, and other paraphernalia. That the evidence was prejudicial to the accused was a consequence of its admissibility, not a reason to exclude it. The court also noted that it would be open to give itself an appropriate direction at the conclusion of the evidence to guard against any tendency or propensity reasoning.

Orders Made

• The accused's application is rejected.

Key Takeaways

  • The District Court confirmed that the Crown is not confined to relying solely on a statutory presumption of supply under s 29 of the Drug Misuse and Trafficking Act 1985 (NSW). Circumstantial evidence, including the presence of significant cash, may also be led to establish that drugs were possessed for the purpose of supply.
  • A rebuttable presumption and independent circumstantial evidence on the same issue are not mutually exclusive. The Crown is not put to an election between the two.
  • Where cash is a common factual element of two separate counts, that overlap does not of itself give rise to duplicity or double jeopardy concerns, provided each count charges a legally distinct offence.
  • Under s 137 of the Evidence Act 1995 (NSW), prejudice arising solely because evidence is damaging and admissible does not constitute the kind of "unfair" prejudice that justifies exclusion. High probative value will weigh strongly against exclusion.
  • Applying R v Falzon [2018] HCA 29, the presence of cash alongside drug-trafficking paraphernalia (resealable bags, scales, and ledgers) constitutes a potentially strong circumstantial case that drugs were held for the purpose of supply.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Crimes Act 1900 (NSW), s 193C(2)
- Evidence Act 1995 (NSW), ss 55, 56, 137

Cases
- R v Falzon [2018] HCA 29; 92 ALJR 701
- R v Hughes and Curtis (1983) 49 ALR 110