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District Court 5 April 2022

R v Shah (No 1)

[2022] NSWDC 707

Drugs
CRIME DRUG OFFENCES POSSESS PROHIBITED DRUG COCAINE EVIDENCE CRIMINAL PROCEEDINGS

Citation: R v Shah (No 1) [2022] NSWDC 707
Court: District Court of New South Wales
Date: 5 April 2022
Judge(s): Sutherland SC DCJ

Background

The accused was arraigned on one count of attempting to possess a border-controlled drug, namely cocaine. A box containing approximately 332 grams of pure cocaine concealed within its cardboard walls was intercepted at Sydney's International Mail Centre in May 2019, addressed to "Abdul Sheh" at Unit 4, 1089-1101 Canterbury Road, Wiley Park. Police reconstituted the box and arranged for a parcel collection notice to be placed in the letterbox at that unit.

The accused, whose name is spelled "Shah" and who resided at Unit 6 in the same block, attended the Roselands Post Shop the following morning. He produced the collection notice and photo identification, claimed he had lived at Unit 4, declined to provide a contact phone number, and left without collecting the parcel. A search warrant was subsequently executed at his Unit 6 premises, where police found, among other things, small clip-seal bags under his bed, a mobile phone with drug-related messages and photographs, and images of a large quantity of cash.

A second, identically addressed parcel containing cocaine was also intercepted. Evidence emerged that the accused had telephoned Australia Post on two occasions in early May 2019, identifying himself as "Abdul Sheh" and inquiring about that uncharged consignment. Before empanelling a jury, the court heard several days of pre-trial applications by the accused seeking to exclude various categories of evidence.

Legal Issues

  • Whether evidence of the uncharged cocaine consignment was admissible as coincidence evidence under s 98 of the Evidence Act 1995 (NSW)
  • Whether the search warrant should be set aside for alleged impropriety in its application
  • Whether questions 150 to 154 of the record of interview should be excised as unfair or a deliberate attempt to confuse the accused
  • Whether evidence from the accused's mobile phone, including images of a white powder (January 2019), cash, and drug-related messages, was admissible as evidence of prior drug involvement

Decision

Issue 1: Coincidence evidence (the uncharged consignment)

The court admitted evidence of the uncharged consignment under the coincidence reasoning framework in s 98 of the Evidence Act. The central issue at trial will be the accused's state of mind when he attended the Roselands Post Shop. The court found that two nearly identical parcels being sent to the same address, combined with the accused's own phone inquiries identifying himself by the name "Sheh" appearing on both boxes, made it highly improbable that the events occurred coincidentally (at [13]-[14]). The court was satisfied that the probative value of this evidence substantially outweighed any prejudicial effect, noting that prejudice does not include the legitimate capacity of evidence to inculpate an accused, as confirmed in R v Dennis Bauer (a pseudonym) [2018] HCA 40 (at [14]-[15]). The jury would be directed not to use the evidence for tendency reasoning.

Issue 2: Validity of the search warrant

The accused argued that the search warrant was obtained by deliberate impropriety because it listed the cocaine consignment itself as an item to be seized, even though it had never left police possession. The court accepted the evidence of the case officer, Senior Constable Woods, that including the consignment parcel was a mistake rather than a deliberate act (at [18]-[19]). The court found that excising the parcel from the warrant would have made no difference to the outcome of the application, as the remaining items sought plainly justified its issue (at [20]). Even if impropriety had been established, the court found that the doctrine of severance would permit removal of the invalid condition without affecting the warrant as a whole, following Malubel Pty Ltd v Elder and Parker v Churchill (at [21]). The court declined to set aside the warrant and found that no question arose under s 138 of the Evidence Act (at [22]).

Issue 3: Fairness of the record of interview

The court viewed the recorded interview and reviewed the transcript. It found no basis for concluding that questions 150 to 154 were unfair or represented a deliberate attempt to confuse the accused (at [23]). The court noted that the accused had voluntarily participated in the interview and had advanced multiple varying explanations. No portion of the interview was excised on this ground.

Issue 4: Evidence of prior drug involvement from the mobile phone

The court admitted images from January 2019 showing a bag of white powder in packaging strikingly similar to the May 2019 consignments, together with drug-related messages and photographs of approximately $30,000 in cash (at [45]). Drawing on the High Court's analysis in The Queen v Falzon [2018] HCA 29 and its approval of Sultana v The Queen, and the reasoning in Harriman v The Queen, the court found this evidence was relevant to establishing the accused's involvement in drug trafficking and was highly probative of his state of mind at the time he attended the post office (at [44]-[45]). The Crown voluntarily excised some specific messages during argument. The court determined that discretionary exclusion was not warranted, but directed that a non-propensity reasoning direction would be given to the jury (at [46]-[47]).

Orders Made

  • Evidence of the uncharged consignment admitted as coincidence evidence
  • Search warrant not set aside
  • Record of interview not excised
  • Balance of objected material (phone images, cash photographs, drug-related messages) admitted as relevant and admissible; some specific messages and communications voluntarily excised by the Crown
  • Direction as to non-propensity reasoning and appropriate relevance to be given to the jury

Key Takeaways

  • Under s 98 of the Evidence Act 1995 (NSW), coincidence evidence of an uncharged consignment can be admissible where striking similarities between two events, and the circumstances surrounding them, render it improbable that they occurred coincidentally and the evidence carries significant probative value as to the accused's state of mind (at [11], [14]).

  • A search warrant is not automatically invalidated by the inclusion of an item that was already in police possession; where the inclusion is found to be a mistake rather than deliberate impropriety, and the remaining items independently justify the warrant, the court may decline to set it aside (at [19]-[20]). The doctrine of severance provides a further basis to preserve the warrant's validity (at [21]).

  • Evidence of prior drug involvement, including photographs of cash, images of substances resembling those the subject of the charge, and drug-related phone messages, can be admissible as circumstantial evidence relevant to a defendant's state of mind and alleged connection to drug trafficking, following The Queen v Falzon [2018] HCA 29 and Sultana v The Queen (at [43]-[45]).

  • Legitimate inculpatory force is not "prejudice" for the purposes of the balancing exercise under the Evidence Act; as confirmed in R v Dennis Bauer (a pseudonym) [2018] HCA 40, prejudice does not extend to evidence that properly tends to establish guilt (at [15]).

  • Where evidence of prior criminal involvement is admitted, a direction to the jury against propensity reasoning remains necessary; the District Court here confirmed that such a direction would be given to ensure the jury considered the material only for its permissible relevance (at [47]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)

Cases
- Falzon v The Queen [2017] VSCA 74
- Harriman v The Queen [1989] HCA 50; 167 CLR 590 and 88 ALR 161
- Malubel Pty Ltd v Elder (1998) 88 FCR 242; (1998) 103 A Crim R 568
- Parker v Churchill (1985) 9 FCR 316
- Peters v The Queen [1998] HCA 7; 192 CLR 493
- R v AN [2000] NSWCCA 372; 117 A Crim R 176
- R v Ball [1911] AC 47
- R v Dennis Bauer (a pseudonym) [2018] HCA 40
- R v Gale; R v Duckworth [2012] NSWCCA 174
- R v Garner (1963) 81 WN (Pt1) (NSW) 120)
- R v Hissey (1973) 6 SASR 280
- R v Matonwal & Amood [2016] NSWCCA 174
- Sultana v The Queen (1994) 74 A Crim R 27
- The Queen v Falzon [2018] HCA 29
- Thompson and Wran v The Queen (1968)
- Wilson v The Queen [1970] HCA 17; 123 CLR 334