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District Court 17 November 2023

R v Snounou (No 2)

[2023] NSWDC 584

Drugs
EVIDENCE TENDENCY EVIDENCE TENDENCY TO POSSESS PRE

Citation: R v Snounou (No 2) [2023] NSWDC 584
Court: District Court of New South Wales
Date: 17 November 2023
Judge(s): Sutherland SC DCJ

Background

The accused was the director of a commercial chemical supply company, Cyndan Manufacturing. He had already pleaded guilty to two NSW offences involving possession of iodine, a methamphetamine precursor, with the intention that it be used to manufacture methylamphetamine: once in 2013 and again in 2017. In each instance, large quantities of iodine were ordered through Cyndan's legitimate business operations and then on-supplied to persons connected with clandestine drug laboratories.

The remaining charge before the court alleged that the accused had imported a border-controlled drug, gamma-butyrolactone (GBL), in a commercial quantity. A 190-kilogram consignment of GBL from China, addressed to Cyndan's warehouse manager, was intercepted by Australian Border Force on 15 December 2017. Separately, Cyndan had obtained a lawful permit and imported 90 kilograms of GBL from the United States, which was delivered on 18 December 2017.

The anticipated issue at trial was whether the accused held a mistaken but reasonable belief, under s 313.2 of the Criminal Code 1995 (Cth), that the importation of the Chinese GBL was legally justified, potentially by reference to the legitimate permit-authorised importation already underway. The Crown sought to rely on the iodine offences as tendency evidence on the GBL charge.

Legal Issues

  • Whether evidence of the accused's prior iodine possession offences constituted admissible tendency evidence capable of rationally affecting the assessment of any fact in issue on the GBL importation charge.
  • Whether any probative value of that tendency evidence was significant, as required under the applicable test.
  • Whether, in the alternative, any slight probative value would substantially outweigh the prejudicial effect of admitting the evidence.

Decision

Issue 1: Relevance and probative value of the tendency evidence

The Crown argued that the accused's use of Cyndan's legitimate chemical business as cover for acquiring iodine, and his on-supply of that iodine to illegal drug manufacturers, demonstrated a tendency relevant to the GBL charge. The court acknowledged that a tendency to use the Cyndan business as a vehicle to acquire substances for illicit purposes might well be established by the admitted facts underlying the two iodine counts (at [40]). However, the central question on the GBL charge was not whether the accused intended to use the GBL illicitly, but whether he held a mistaken and reasonable belief that the importation was lawful (at [28], [41]-[42]).

The court concluded that neither the ultimate intention to use GBL illicitly, nor the mechanism of using Cyndan as cover, was a fact in issue at trial. The tendency to on-supply substances to illicit drug manufacturers did not go to establishing any necessary element of the charged GBL importation offence (at [47]-[48]). Accordingly, the tendency evidence was not capable of rationally affecting the tribunal of fact's assessment of any fact in issue, and its probative value was not significant (at [43]-[48]).

Issue 2: Balancing probative value against prejudicial effect

The court added, in the alternative, that even if it had been wrong about probative value, any slight probative value the evidence possessed would not substantially outweigh its prejudicial effect. On either basis, the evidence could not be admitted (at [49]-[50]).

Earlier related ruling: benzyl cyanide count

In the companion decision R v Snounou (No 1) [2023] NSWDC 583, the court had already rejected evidence from a forensic chemist who, without confirmatory testing, expressed only that he was "reasonably comfortable" that a substance was benzyl cyanide (at [13]-[14]). Following that ruling, the Crown filed a nolle prosequi discontinuing that count. The removal of the benzyl cyanide count also substantially reduced the force of any tendency argument, since the Crown abandoned reliance on the factual matrix behind that count in pressing the tendency application on the GBL charge (at [15], [18]).

Orders Made

  • Tendency evidence rejected due to lack of significant probative value.
  • In the alternative, any slight probative value would not substantially outweigh the prejudicial effect of admitting the evidence.

Key Takeaways

  • Tendency evidence must have significant probative value with respect to a fact actually in issue at trial. Where the anticipated trial issue is the accused's subjective belief about lawfulness, prior conduct demonstrating illicit supply does not speak to that element and cannot establish the required probative value (at [43]-[48]).

  • A tendency to use a legitimate business as cover for acquiring substances may be established by guilty pleas and admitted facts, yet still fail the admissibility threshold if it relates only to a collateral, uncharged intention rather than to an element of the offence charged (at [40], [47]-[48]).

  • Under the test confirmed in Hughes v The Queen (2017) 263 CLR 338, tendency evidence requires more than marginal logical relevance; its probative value must be significant, and that significance must be assessed by reference to the actual issues the jury will be asked to determine.

  • The District Court reinforced that where probative value is not significant, the alternative balancing exercise (whether slight probative value is substantially outweighed by prejudicial effect) will ordinarily produce the same result in the accused's favour (at [49]-[50]).

  • Expert evidence identifying a controlled substance will not be admitted where the analyst has performed only presumptive testing and cannot do more than express comfort with a conclusion, leaving the identification unconfirmed by the standard required for a criminal trial (at [13]-[14]).

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth).
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Gardiner v Regina (2006) 162 A Crim R 233; [2006] NSWCCA 190
- Hughes v The Queen (2017) 263 CLR 338; 344 ALR 187; [2017] HCA 20
- R v Snounou (No 1) [2023] NSWDC 583