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Court of Criminal Appeal 8 July 2024

Shah v R

[2024] NSWCCA 113

Drugs
CRIME APPEALS APPEAL AGAINST CONVICTION PARCEL INTERIOR LINED WITH COCAINE EVIDENCE CORRECTLY ADMITTED APPEAL DISMISSED

Citation: Shah v R [2024] NSWCCA 113
Court: NSW Court of Criminal Appeal
Date: 8 July 2024
Judges: Stern JA, Rothman J, Button J

Background

The appellant was convicted by jury in the District Court of attempting to possess a marketable quantity of cocaine, a border controlled drug, contrary to the Criminal Code Act 1995 (Cth). The offence arose from his attempt to collect a parcel sent from South Africa to a post office in Sydney. That parcel was addressed to a name almost identical to his own, at a different unit number within the apartment building where he lived. When intercepted, the parcel's interior walls were found to be lined with packages containing 332.2 grams of cocaine. The appellant was sentenced to five years and eleven months' imprisonment, with a non-parole period of two years and eleven months.

At trial, the prosecution sought to adduce evidence of an earlier, uncharged consignment also sent from South Africa. This earlier parcel shared numerous features with the charged parcel: it was addressed using the same slightly altered version of the appellant's name and to the same incorrect unit number in his apartment building. The trial judge admitted this earlier consignment as coincidence evidence over the appellant's objection.

The appellant brought an out-of-time appeal against conviction, arguing that admitting the coincidence evidence occasioned a miscarriage of justice. Leave to appeal out of time was not opposed by the Crown.

  • Whether the trial judge erred in admitting evidence of the uncharged consignment as coincidence evidence under ss 98 and 101 of the Evidence Act 1995 (NSW)
  • Which version of the statutory admissibility test applied, given that amendments to the Evidence Act commenced on 1 July 2020 but the proceedings were first commenced before that date
  • Whether the probative value of the coincidence evidence substantially outweighed any prejudicial effect on the appellant
  • Whether admission of the evidence caused a miscarriage of justice warranting the conviction being set aside

Decision

The Court first determined the applicable statutory test. Because the hearing had commenced by way of the first arraignment in the District Court before 1 July 2020, the pre-amendment version of ss 98 and 101 of the Evidence Act applied. Under s 101, coincidence evidence adduced by the prosecution cannot be used against a defendant unless its probative value "substantially outweighs" any prejudicial effect. This point was common ground and consistent with the trial judge's approach.

The Court applied the "correctness standard," meaning the appellate judges conducted their own fresh evaluation of the admissibility question rather than searching for error in the trial judge's reasoning. This standard follows from R v Bauer (A Pseudonym) (2018) 266 CLR 56. Both parties agreed the appeal could be determined on the materials available to the trial judge at the time of the ruling.

Button J, with whom Stern JA and Rothman J agreed, found that the coincidence evidence possessed significant probative value directed at the central fact in issue: the appellant's state of mind when he sought to collect the charged consignment, specifically whether he knew, or foresaw the real possibility, that it contained a border controlled drug. The numerous similarities between the two consignments, including the same altered name and incorrect unit number, combined with cocaine being hidden in each, powerfully supported the Crown's case on that mental element.

Although Button J accepted that admission of the evidence created a risk of the jury using it in a prejudicial way, he was affirmatively satisfied that this risk was substantially outweighed by the evidence's probative value. Approaching the question by two distinct analytical routes, including the multi-step framework from R v Gale; R v Duckworth, he concluded the statutory test was satisfied and the trial judge's decision was correct. The appeal was dismissed.

Orders Made

  • Leave to appeal out of time granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that where proceedings commenced before 1 July 2020, the pre-amendment version of ss 98 and 101 of the Evidence Act 1995 (NSW) continues to apply by operation of the transitional provision in Schedule 2, Part 6, cl 28 of that Act.
  • Applying the correctness standard, the appellate court independently evaluated admissibility rather than reviewing the trial judge's reasoning for error, consistent with the High Court's approach in R v Bauer (A Pseudonym).
  • Coincidence evidence from an uncharged consignment can be highly probative where it shares multiple specific features with the charged conduct and directly bears on the defendant's state of mind as a disputed element of the offence.
  • The risk that a jury might misuse coincidence evidence in a prejudicial way does not preclude admission; that risk must be weighed against probative value, and the evidence is admissible where probative value substantially outweighs any prejudicial effect.
  • In dismissing the appeal, the Court confirmed Rothman J's additional observation that even if the amended statutory test had applied, the evidence would still have been admitted.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(a)
- Criminal Code Act 1995 (Cth), ss 11.1(1), 307.6(1)
- Evidence Act 1995 (NSW), ss 98, 101; Sch 2, Pt 6, cl 28

Cases:
- R v Bauer (A Pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- R v Gale; R v Duckworth (2012) 217 A Crim R 487; [2012] NSWCCA 174
- R v Shah (No 1) [2022] NSWDC 707
- R v Zhang (2005) 158 A Crim R 504; [2005] NSWCCA 437
- Stephens v R (2022) 273 CLR 635; [2022] HCA 31
- Su v R [2023] NSWCCA 21