CDirector of Public Prosecutions v Isik

[2021] VCC 1973

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-01384

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
Mert ISIK	Defendant

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2021; 7 December 2021
DATE OF RULING:	8 December 2021
CASE MAY BE CITED AS:	CDPP v ISIK
MEDIUM NEUTRAL CITATION:	[2021] VCC 1973

RULING
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Subject:Attempting to possess a commercial quantity of an unlawfully imported border controlled drug

Catchwords:              Admissibility of evidence – telephone intercepts – delivery of a package containing a border controlled drug – relevance test – unfair prejudice – general fairness direction.

Legislation Cited:      Evidence Act 2008 (Vic).

Cases Cited:Haddara v R (2009) 43 VR 53; R v Hillier [2007] 228 CLR 619; Chamberlain [No 2] (1984) 153 CLR 521; Director of Public Prosecutions v Fernando Manuel Paulino [2017] VSCA 38.

Ruling: Evidence of two recorded telephone call intercepts relevant – excluded under s 137 – Not necessary to consider the general fairness direction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Wilson	Office of the Commonwealth Director of Public Prosecutions
For the Defendant	Mr D. Sheales Mr S. Tovey	Milides Lawyers

HIS HONOUR:

1Mert Isik is to stand trial on a charge of attempting to obtain possession of a commercial quantity of an unlawfully imported border controlled drug.

2The prosecution case is, on 11 January 2019, the accused man took a delivery of a box, which he believed contained a border-controlled drug or was least reckless as to whether or not it did.

3The accused does not dispute he took delivery of the package but disputes he believed, or was reckless to whether, it contained a border-controlled drug.

4The prosecution case is that:

(a)   on 17 December 2018, at Melbourne, Australian Border Force officers intercepted a package, which had arrived from France by air cargo.

(b)   The package contained 6.4374 kg of cocaine in eight, one kilogram blocks of compressed white powder.

(c)   The package was consigned to the accused man at the address of his “Scales” fish and chip shop(“the shop”) at Brunswick East.

(d)   Australian Federal Police officers removed the cocaine and replaced it with an inert substance for a controlled delivery.

(e)   On 11 January 2019, a federal agent, posing as a delivery driver, delivered the package to “Scales” where the accused man accepted delivery of it.

(f)    He directed the delivery driver to put the package in front of a storage cage in a storage facility nearby to “Scales”.

(g)   Between the time of delivery and his arrest, the accused was observed, several times, opening the roller door or standing in the vicinity of the storage facility.

(h)   When police executed a search warrant at the premises they found the package had been moved into a storage cage, within the facility, which was padlocked.

(i)    When police arrested the accused, he had a key to the padlock in his possession; and

(j)    A fingerprint located on the top of the package has been identified as the accused man’s print.

5The prosecution also relies on evidence of two recordings of conversations, where the accused allegedly discussed, with others, his use of MDMA and cocaine on 1 January 2019, to show he had an interest in cocaine and a willingness to possess it.

6The prosecution also relies on evidence of alleged lies the accused told police, when they executed the search warrant and when they interviewed him, as incriminating conduct.

7The accused man has objected to the evidence being relied on for that purpose. I will rule on that objection at the conclusion of the evidence in the trial.

8On 1 December 2021, the prosecution filed an amended summary of prosecution opening, in which the prosecution now also relies on evidence of recordings of two conversations, intercepted from the accused man’s telephone on 24 and 25 December 2018.

9In the first call, the accused allegedly asked another man, who was shutting up the shop, whether “anything” had arrived. He told the man not to be “too specific” in his response. When the man said nothing had arrived the accused allegedly asked him to wait at the shop for another ten minutes.

10In the second call, the next day, the accused allegedly asked the same man again, whether “anything” had arrived. The other man replied nothing had.

11The prosecution relies on the conversations, in combination with the other evidence, to show the accused man was discussing delivery of the package which contained the cocaine (“the package”).

Defence contention

12The accused objects to the admissibility of the evidence.

13Mr Sheales, who, with Mr Tovey, appears for the accused, submitted:

(a)   Firstly, the evidence is irrelevant.

(b)   Secondly, in the alternative, if the evidence has probative value it is significantly outweighed by the risk of unfair prejudice.

(c)   Thirdly, in the alternative, because the lateness of disclosure of the evidence, it should be excluded in the exercise of the “general unfairness discretion”.[1]

[1]Haddara v R (2009) 43 VR 53, at [14], [61].

14I heard evidence on a voir dire, from the informant, federal agent Dalton.

15He said he monitored most of the calls intercepted from the accused’s telephone.

16The calls in dispute were with a man who was using a 358 service.

17He did not do a subscriber check for a number.

18He did not make any enquiries as to the identity of the man or as to the contents of the conversations.

19On 17 March 2020, he provided Office of the Commonwealth Director of Public Prosecutions, a 900-page summary of calls, including the 24 and 25 December calls, intercepted from the accused’s phone.

20I was told the summary was provided to the accused’s lawyers on 15 October 2021.

21Mr Dalton confirmed the freight agent, UPS, was unable to provide him with any information of any communication or correspondence with the accused man or anyone else in respect of the package.

22He also confirmed he had no information of any communication or correspondence between the accused man and the consignor of the package .

23Mr Sheales submitted that the substance of the two conversations is that the accused was enquiring about the possible receipt of some kind of illicit item which he expected to arrive on 24 December 2018.

24He submitted that the item, which the accused was enquiring about, could have been anything.

25The package was sent from France on 27 November 2018 and arrived in Australia on 7 December 2018. He submitted the timing of the two conversations was too remote from the arrival of the package in Australia to link them to the package.

26He submitted, in the absence of any evidence that the accused man knew the package was to arrive, the conversations do not demonstrate any knowledge of the package and are, accordingly, irrelevant.

27In the alternative, he submitted, if the evidence is relevant, because the conversations show the accused was expecting to receive an item of an illicit kind, there is a risk a jury would use the evidence for a propensity purpose. That is to say, a jury might reason, if the accused man is the type of person who obtains illicit packages, he is likely to have believed the package, which he obtained, contained a border controlled drug.

28He submitted the probative value is substantially outweighed by the risk of unfair prejudice and, accordingly, the evidence must be excluded by operation of section 137 of the Evidence Act.[2]

[2] Evidence Act 2008 (Vic)

29In the alternative, he submitted evidence of the conversations should be excluded in exercise of the general fairness discretion. He submitted the calls significantly alter the prosecution case and, because of their very late disclosure, the accused man is denied the opportunity to investigate the calls and to adduce rebuttal evidence. He submitted, in the circumstances, the admission of the evidence would be unfair to the accused in this trial and should be excluded.

Prosecution Submissions

30Mr Wilson, who appeared for the Crown, submitted the evidence, which shows the accused was expecting delivery of a package, in combination with other evidence, tends to prove the accused man believed, or was at least reckless to the fact that the package contained a controlled drug.

31In his submission, the other circumstances which the Crown relies on to support the inference of guilty knowledge are:

(a)   Firstly, the arrival of the package, consigned to the accused, in December 2018;

(b)   Secondly, his acceptance of it on 11 January 2019;

(c)   Thirdly, the absence of evidence he was expecting another package; and

(d)   Fourthly, his several attendances at the storage facility, where the package was located, in the afternoon and evening of 11 January 2019.

32He submitted, the evidence of the conversations on its own, shows that the accused was expecting a package, the nature of which he did not want to discuss over the telephone and, in combination with evidence of the other circumstances, tends to show that he was expecting the package which had contained the cocaine, and accordingly, it is relevant and admissible.

33He submitted that any risk of unfair prejudice to the accused, by the admission of the evidence, can be cured by direction to the jury that they are to use the evidence only as a piece of circumstantial evidence to be considered with all the evidence, and not to use it as propensity evidence.

34He submitted the accused man has had sufficient time to make any enquiries and there is no unfairness to him, in the general sense, by the admission of the evidence.

Consideration

35It is well established a circumstantial case is not to be considered “piecemeal”.[3]

[3]R v Hillier  [2007] 228 CLR 619, at [48].

36One circumstance should not be excluded because, considered alone, no inference of guilt can be drawn from it. A jury must consider “the weight which is to be given to the united force of all the circumstances put together”.[4]

[4]Chamberlain [No 2] (1984) 153 CLR 521, at [535] per Gibbs CJ and Mason J.

37As Priest JA said in DPP v Paulino:

“As a matter of common experience, often a piece of circumstantial evidence will have little probative value on its own but, when considered with other pieces of circumstantial evidence (themselves perhaps flimsy if viewed in isolation), will support a compelling inference of fact. It needs to be borne steadily in mind, however, that before a strand of circumstantial evidence may be considered collectively with other strands, it must have some capacity to rationally to affect the assessment of a fact in issue. If a strand does not have that capacity, it is irrelevant.”[5]

[5]Director of Public Prosecutions v Fernando Manuel Paulino [2017] VSCA 38, at [97].

38The fact in issue in this trial is whether the accused man believed or was at least reckless, as to whether the package he accepted contained a border-controlled drug.

39There is evidence that:

(a)   the package was consigned to the accused man at his shop; and

(b)   he accepted delivery of it there.

40Considering  all the pieces of  circumstantial evidence,  I am satisfied that evidence of the accused’s enquiry about arrival of something at his shop, between the time the package was sent and the time it was delivered, is relevant.

41There is evidence the accused man used the storage facility to store items related to his business. There is also evidence he was a user of MDMA and cocaine.

42It is reasonably possible that the accused was talking about the package, but also reasonably possible he was talking about another item, perhaps something related to his business or his use of MDMA. Accordingly, the evidence only marginally passes the test of relevance.

43I must weigh its limited probative value against the danger of unfair prejudice.

44In the absence of any other evidence the accused was aware or believed the package was to be delivered to him, and considering the disputed evidence is the only evidence of that the accused man was expecting to receive a delivery, I am satisfied there is a risk the jury will place undue weight upon the evidence and give it force disproportionate to its actual probative value.

45I do not consider that this danger can be adequately managed by the giving of directions to the jury about how this evidence is to be properly used.

46Accordingly, I rule the evidence is inadmissible by operation of section 137 of the Evidence Act.[6]

[6]Evidence Act 2008 (Vic).

47While it is not necessary to make a determination, I consider the risk of a jury using the evidence for impermissible propensity reasoning could be managed by direction.

48In the circumstances, it is not necessary for me to consider whether I should exercise the general fairness discretion to exclude the evidence.