BNM v The Queen

Case [2020] SASCFC 10

Supreme Court of South Australia

(Court of Criminal Appeal)

BNM v THE QUEEN

[2020] SASCFC 10

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Doyle and The Honourable Auxiliary Justice David)

21 February 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

The appellant was charged with one count of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The particulars of the charge were that the appellant, on the 13th day of February 2017 at Oakden, trafficked in a controlled drug, namely methylamphetamine, knowing or being reckless as to the fact the substance was a controlled drug.

Following a trial before judge and jury, the appellant was found guilty by a majority verdict.

The appellant appeals against her conviction upon the following grounds:

1. The trial judge erred in his application of ss 34P(2)(a) and (b) of the Evidence Act 1929 (SA) in permitting the prosecution to adduce evidence of discreditable conduct of the appellant’s two prior convictions for drug trafficking.

2. The trial judge erred in his directions to the jury as to the use of the evidence of discreditable conduct, contrary to s 34R of the Evidence Act.

3.       The trial judge erred in failing to direct the jury as to the circumstantial nature of the case against the appellant, and the need to exclude a reasonable hypothesis consistent with innocence.

4.       The trial judge erred in directing the jury as to the reasons the appellant may not have been charged with trafficking following the search of her Oakden premises on 30 December 2016.

5.       The verdict was unreasonable in that the evidence before the jury was not capable of establishing beyond reasonable doubt that the appellant was in possession of a controlled substance.

The appellant was granted permission to appeal on grounds 3 and 4.  Her application for permission to appeal on grounds 1, 2 and 5 was referred to this Court for consideration.

Held, per Doyle J (Peek J and David AJ agreeing), granting permission to appeal in respect of grounds 1, 2 and 5 but dismissing the appeal:

1. The probative value of the evidence of the earlier searches substantially outweighed any prejudicial effect it may have had, and it had a strong probative value, thus satisfying the criteria for its admissibility under s 34P(2)(a) and (b). Even though the permissible use of the discreditable conduct evidence involved a form of propensity evidence, a properly instructed jury would have understood the distinction between this use and the impermissible general or bare propensity under s 34P(1).

2.       The trial judge’s directions correctly and clearly identified both…

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BNM v The Queen [2020] SASCFC 10
Case
[2020] SASCFC 10
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, BNM, for drug trafficking. The prosecution relied on evidence of a fingerprint matching the appellant's left thumb found on scales discovered alongside tubs of methylamphetamine, and handwriting on a tick list and a brown paper bag matching the appellant's. Crucially, evidence of two prior searches of a unit occupied by the appellant, in November 2015 and January 2016, was admitted over the appellant's objection. In November 2015, police found significant quantities of methylamphetamine, digital scales, and cash, for which the appellant pleaded guilty to trafficking. The January 2016 search also revealed methylamphetamine, scales, drug paraphernalia, and messages relating to drug trafficking. The appeal was heard by Peek and Doyle JJ and David AJ.

The central legal issues before the appellate court were whether the admission of the evidence from the two prior searches constituted a miscarriage of justice, and whether the verdict was unreasonable or insupportable having regard to the evidence. Specifically, the court had to consider if the discreditable conduct evidence from the earlier searches was improperly admitted and if the cumulative effect of all the evidence was sufficient to support the jury's verdict.

The court reasoned that the cumulative effect of the evidence, including the fingerprint, handwriting, and the prior drug trafficking offences, was sufficient to allow the jury to convict the appellant. The prior offences were admitted as discreditable conduct evidence, and the court found that their prejudicial effect did not outweigh their probative value in establishing the appellant's knowledge and intent in relation to the methylamphetamine found in the later search. The court concluded that the admission of this evidence did not occasion a miscarriage of justice and that the verdict was not unreasonable.

Permission to appeal was granted on grounds relating to the admission of evidence and the reasonableness of the verdict. However, for the reasons outlined, the appeal was dismissed on all grounds.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was an agreed fact that a fingerprint located on the scales found in the same location as the tubs of methylamphetamine was an identical match to the left thumb of the accused. It was also an agreed fact that both the tick list, and the writing found on the brown paper bag found in the master bedroom, were in the appellant’s handwriting. The discreditable conduct evidence As mentioned, evidence of two earlier searches (in November 2015 and January 2016) was led by the prosecution, over the objection of the appellant. Evidence was also led, without objection, of the third earlier search (in December 2016).The November 2015 search The evidence was that the police searched a unit in Bowden in the morning of 28 November 2015. The appellant answered the door and was the only person at the unit. During the course of the search, the police located in the bathroom a list with names and monetary amounts. On the kitchen table there were three plastic bags with a crystalline substance in them, along with a set of digital scales. A further six bags with methylamphetamine were located in a handbag on the kitchen table. There was also a pink notebook on the kitchen table containing names and monetary amounts. Two mobile phones were located in a kitchen drawer. A silver box located under the coffee table in the lounge room contained two tubs of methylamphetamine and a set of digital scales. Another tub of methylamphetamine, and another set of digital scales, were located in the drawer of the coffee table. A diary on the coffee table contained a page that referred to a name and amount. Cash in the amount of $3,180 was found in the handbag on the kitchen table, along with $200 on the fridge. Three of the four sets of digital scales located within the Bowden premises contained traces of methylamphetime. The total weight of the methylamphetamine located in the press-sealed bags and small plastic tubs was 10.98 grams. The appellant was arrested, charged and pleaded guilty to trafficking the methylamphetamine found during this search. The January 2016 search Police searched the Bowden unit again on 12 January 2016 at about 5pm. The door was answered by a male, and there were two other males present in the lounge room. The appellant was present and in the bathroom when the police arrived. There was a CCTV system in operation, with the monitor set up in the lounge room. In a cabinet in the lounge room, the police located a box containing five small press-sealed bags containing methylamphetamine, two sets of digital scales, a quantity of unused plastic bags and tubs, some syringes and an ice-pipe. Between the cushions on the couch in the lounge room the police located three more press-sealed plastic bags. One contained methylampetamine, and the other two were empty. More methylamphetamine was found inside a torch attached to a key ring. A notebook with names and monetary amounts was located in a kitchen drawer. An electronic tablet on the coffee table was seized as it contained Facebook Messenger messages in relation to drug trafficking. Some MSM powder, commonly used as a cutting agent for methylamphetamine, was found above the stove in the kitchen. And a plastic bag with methylamphetamine was located in a sunglasses holder in the vehicle registered to the appellant.

Decision

Reasons for decision

In my view, the cumulative effect of this evidence was sufficient to leave it open to the jury to convict the appellant. I would thus reject the fifth ground of appeal.Conclusion and orders While I would grant permission to appeal on grounds 1, 2 and 5, for the reasons set out I would dismiss the appeal on all grounds. DAVID AJ: I would dismiss the appeal. I agree with the reasons of Doyle J and the orders he proposes.

Ratio Decidendi

Legal Principle Established

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