Flessas v The State of Western Australia

[2018] WASCA 210

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   FLESSAS -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 210

CORAM:   BUSS P

MAZZA JA

BEECH JA

HEARD:   23 AUGUST 2018

DELIVERED          :   23 NOVEMBER 2018

FILE NO/S:   CACR 63 of 2018

BETWEEN:   EMMANUEL FLESSAS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GOETZE DCJ

File Number            :   IND 686 of 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of multiple counts of possession of a prohibited drug with intent to sell or supply to another and multiple counts of possession of cash that was reasonably suspected to be unlawfully obtained - Propensity evidence - Whether the trial judge erred in deciding that evidence of the appellant's conviction for a prior offence of drug dealing had 'significant probative value' within s 31A of the Evidence Act 1906 (WA)

Legislation:

Criminal Code (WA), s 417(1)
Evidence Act 1906 (WA), s 31A
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr S D Freitag SC & Mr S Nigam
Respondent	:	No Appearance

Solicitors:

Appellant	:	Nigams Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

DKA v The State of Western Australia [2017] WASCA 44

Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 92

McPhillamy v The Queen [2018] HCA 52

R v Bauer (A Pseudonym) [2018] HCA 40; (2018) 92 ALJR 846

RMD v The State of Western Australia [2017] WASCA 70

JUDGMENT OF THE COURT:

1. The appellant has applied for leave to appeal against conviction.

2. The appellant was charged on indictment with 8 counts.

3. Count 1 alleged that on 10 May 2016, at Dianella, the appellant was in possession of $136,016.82 cash, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code).

4. Count 2 alleged that on 1 June 2016, at North Perth, the appellant was in possession of $35,150 cash, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Code.

5. Count 3 alleged that on 1 June 2016, at Mirrabooka, the appellant was in possession of $8,950 cash, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Code.

6. Count 4 alleged that on 29 September 2016, at Malaga, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).

7. Count 5 alleged that, on the same date and at the same place as in count 4, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.

8. Count 6 alleged that, on the same date and at the same place as in count 4, the appellant had in his possession a prohibited drug, namely cocaine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.

9. Count 7 alleged that on 30 September 2016, at Millendon, the appellant was in possession of $1,682 cash, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Code.

10. Count 8 alleged that on 30 September 2016, at Dianella, the appellant was in possession of $3,815 cash, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Code.

11. On 30 January 2018, the appellant was convicted, after a trial before Goetze DCJ and a jury, of counts 1, 2, 3, 4, 5, 7 and 8.  He was also convicted, on his plea of guilty at the beginning of the trial, of count 6.

12. We would refuse leave to appeal and dismiss the appeal.  Our reasons are as follows.

The ground of appeal

1. On 16 November 2017, the trial judge ruled that evidence of the appellant's prior conviction, on 6 January 2011, for the offence of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, was admissible under s 31A of the Evidence Act 1906 (WA).

2. The sole ground of appeal alleges, in effect, that his Honour erred in law in deciding that the evidence of the appellant's prior conviction had 'significant probative value' within s 31A.

The State's case in relation to counts 1, 2, 3, 4, 5, 6, 7 and 8

1. On 10 May 2016, the police executed a search warrant at the appellant's home and located $136,016.82 cash.  This amount was the subject of count 1.

2. On 1 June 2016, the police stopped the appellant's vehicle and located $4,000 cash in his pocket and $31,150 cash in an envelope under the driver's seat.  Those amounts were the subject of count 2.

3. Later on 1 June 2016, the police observed the appellant driving a different vehicle.  The appellant was approached by the police at Mirrabooka Village Shopping Centre.  The police searched the appellant's vehicle and located $8,950 cash in a bag on the front passenger footwell.  This amount was the subject of count 3.

4. On 29 September 2016, the police located 1,106.5 g of methylamphetamine hidden in vacant bushland adjacent to the appellant's business premises.  During the evening of 29 September 2016, the police executed a search warrant at the appellant's business premises and located 3 g of methylamphetamine hidden in the ceiling of the premises.  Those drugs were the subject of counts 4 and 5 respectively.

5. Also, on 29 September 2016, the police located 9.4 g of cocaine in the glovebox of a quad bike in the workshop of the appellant's business premises.  This drug was the subject of count 6.

6. On 30 September 2016, the appellant was arrested.  The police searched the appellant and located $1,682 cash.  This amount was the subject of count 7.

7. Later on 30 September 2016, the police searched the appellant's vehicle and located $3,815 cash.  This amount was the subject of count 8.

8. On 10 May 2016, when the police executed the search warrant at the appellant's home, the appellant claimed that he had won the $136,016.82 cash the subject of count 1 at Crown Casino.  The police obtained records from Crown Casino in relation to the appellant which revealed that the appellant had lost a substantial amount of money in the years preceding 10 May 2016.  Also, the police obtained financial records in relation to the appellant, his partner and the appellant's business from the Australian Taxation Office which revealed that the appellant and his partner were not earning sufficient income lawfully to explain the appellant's possession of such a large amount of cash.

9. On 29 September 2016, when the police searched the vacant bushland on the premises adjoining the appellant's business premises, they located a plastic bag which contained 2 cryovac bags of methylamphetamine with a total quantity of 1,106.5 g (count 4).

10. At all material times, there was access from the appellant's business premises to the adjoining vacant bushland premises through an opening in the dividing fence between the properties.  On 29 September 2016, before the police executed the search warrant at the appellant's business premises and before the police searched the vacant bushland on the adjoining premises, covert police operatives had observed the appellant park his vehicle on the verge of the adjoining premises and walk into the bush.  The operatives lost sight of the appellant for a few minutes.  When the appellant reappeared he appeared to be carrying a small black bag.  The appellant was in the vicinity of the adjoining vacant bushland premises for a total of about 6 or 7 minutes.

11. On 29 September 2016, when the police searched the appellant's business premises, they found a fingerprint on a 'Coles' bag which contained 9.4 g of cocaine (count 6) that matched the appellant's fingerprint, but the police did not find any DNA or fingerprint evidence that linked the appellant to the methylamphetamine offences.

12. However:

    (a)the police found a cryovac machine and bags in the appellant's business premises which were consistent with the manner in which the 1,106.5 g of methylamphetamine the subject of count 4 had been packaged;

    (b)a chemical comparison of the 1,106.5 g of methylamphetamine the subject of count 4 and the 3 g of methylamphetamine the subject of count 5 revealed that both quantities of methylamphetamine were from the same batch; and

    (c)shoe impressions obtained from the tread of a pair of black Nike shoes seized from the appellant were similar to shoe impressions located in the sand on the adjoining premises where the police located the 1,106.5 g of methylamphetamine.

The appellant's case at trial

1. The appellant gave sworn evidence at trial that the cash seized by the police was income from his concreting business and from his gambling.  He claimed to have no knowledge of the existence of the methylamphetamine the subject of counts 4 and 5.  The appellant said he did not know to whom the drugs belonged.

The propensity evidence

1. The propensity evidence which the State adduced at trial was, in essence, as follows:

   (a)On 20 May 2010, the police executed a search warrant at the appellant's residence.

   (b)When the police arrived, the appellant was in the carport area of the premises.  He then walked into the residence.

   (c)When the police entered the residence, they observed the appellant at a sink.  He was attempting to wash a substance down the drain.

   (d)The police seized the remains of the substance being washed down the drain together with part of the substance that was in the U-joint under the sink.

   (e)Police also seized 6 large clip seal bags from the kitchen bin.  The bags contained traces of methylamphetamine.

   (f)The appellant was in possession of 64.724 g of methylamphetamine.  Of that quantity, 49.224 g ranged in purity between 33% and 60%.

   (g)At the residence there was a functioning closed circuit television system with cameras which recorded movements outside the house.

   (h)The police found a wallet on the kitchen bench which contained $4,000 cash.  The appellant was unable, when questioned, to account for the source of the cash.

   (i)The police also found 4 mobile telephones, a cash counting machine, scales, a box of clip seal bags, MSM and a tick list.

   (j)The appellant was, on his own admission, engaged in the commercial distribution of methylamphetamine into the community.

2. On 6 January 2011, the appellant was sentenced to 2 years 8 months' immediate imprisonment for the prior offence.

3. The State sought to adduce the propensity evidence to show that the appellant had a propensity to be in possession of and to distribute prohibited drugs for commercial gain.

4. The State also sought to adduce the propensity evidence to rebut any innocent explanation from the appellant for his possession of large amounts of cash.

The trial judge's reasons for admitting the propensity evidence under s 31A of the Evidence Act

1. The trial judge was satisfied that the propensity evidence had significant probative value in relation to the offences charged in the indictment.  His Honour did not accept defence counsel's contention that the differences between the facts and circumstances of the prior offence and the facts and circumstances alleged by the State in relation to the current charges required the conclusion that the propensity evidence did not have significant probative value.  His Honour was persuaded that the public interest in adducing all relevant evidence of guilt (including the propensity evidence) must have priority over the risk of an unfair trial.  His Honour said that any impermissible prejudice to the appellant could be overcome by appropriate directions to the jury.

Counsel for the appellant's submissions to this court

1. Counsel for the appellant made the following submissions in support of the proposition that the propensity evidence did not have significant probative value in relation to the offences charged in the indictment.

2. First, there was a lack of temporal proximity between the prior offence and the current charges.

3. Secondly, the scale of the offending alleged in relation to the current charges was substantially greater than the scale of the offending alleged in relation to the prior offence.

4. Thirdly, the appellant's position in the distribution chain in the context of the prior offence was substantially lower than his position in the distribution chain in the context of the current charges.

5. Fourthly, the amount of cash involved with the prior offence was substantially less than the total amount of cash involved with the current charges.

6. Fifthly, the drugs and the drug related paraphernalia in relation to the prior offence were found by the police in the appellant's residence and consequently there was a 'very direct connection' between the drugs and the appellant (appeal ts 7).  By contrast, possession was 'very much in issue in relation to the current offending', especially in the context of the 1,106.5 g of methylamphetamine the subject of count 4.  In short, as regards possession, 'the connection to the appellant was very strong in relation to [the prior offence]', but 'the connection to the appellant was tenuous in relation to the current offending' (appeal ts 8).

The merits of the ground of appeal

1. Section 31A of the Evidence Act provides:

   (1)In this section -

   propensity evidence means -

   (a)similar fact evidence or other evidence of the conduct of the accused person; or

   (b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;

   relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.

   (2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -

   (a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

   (b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

   (3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.

2. In s 31A(1), 'propensity evidence' is defined by reference to the conduct, character or reputation of the accused or a tendency that the accused has or had. It includes similar fact evidence. Section 31A(1) defines 'relationship evidence' in more specific terms, by reference to the accused's attitude or conduct towards another person, or a class of persons, over a period of time. The categories of 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are not mutually exclusive. There will, no doubt, often be cases where evidence which answers the description of 'relationship evidence' will also fall within the definition of 'propensity evidence'.

3. The tests for admissibility in s 31A(2)(a) and (b) apply to both 'propensity evidence' and 'relationship evidence', as defined. Neither 'propensity evidence' nor 'relationship evidence' will be admissible under s 31A unless the court considers that:

   (a)the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and

   (b)the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

4. In the present case, the appellant challenges the trial judge's ruling that the State was entitled to adduce evidence of the appellant's prior offence as 'propensity evidence' under s 31A. The appellant's challenge is confined to the contention that the evidence did not have 'significant probative value'.

5. The concept of 'significant probative value', within s 31A(2)(a), has been explained in numerous decisions of this court. See, for example, Dair v The State of Western Australia;[1] DKA v The State of Western Australia;[2] RMD v The State of Western Australia.[3]  It is unnecessary to repeat what was written in those cases about the concept.

   [1] Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [60] - [61] (Steytler P).

   [2] DKA v The State of Western Australia [2017] WASCA 44 [30], [42] - [44] (Buss P, Mazza JA & Beech J).

   [3] RMD v The State of Western Australia [2017] WASCA 70 [52] (Buss P), [185] (Beech J).

6. The question of whether propensity evidence is of significant probative value is one to which there can only be one correct answer, but it is a question about which reasonable minds may sometimes differ.  It follows that, in an appeal against conviction, the appellate court must determine for itself whether the evidence is of significant probative value, as distinct from deciding whether it was open to the trial judge to conclude that the evidence had significant probative value.  See R v Bauer (A Pseudonym).[4]

   [4] R v Bauer (A Pseudonym) [2018] HCA 40; (2018) 92 ALJR 846; [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); See also DKA [34].

7. We are satisfied that the trial judge was correct in ruling that evidence of the appellant's prior offence was admissible under s 31A as propensity evidence. Also, we are satisfied that the trial did not miscarry as a result of the admission of the evidence. See McPhillamy v The Queen.[5]

   [5] McPhillamy v The Queen [2018] HCA 52 [11] (Kiefel CJ, Bell, Keane and Nettle JJ).

8. An assessment of the probative value of propensity evidence requires the court to determine the extent to which:

   (a)the evidence is capable of proving the propensity; and

   (b)proof of the propensity increases the likelihood of the commission of the offence. 

   See Hughes v The Queen.[6]

   [6] Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 92 [41] (Kiefel CJ, Bell, Keane and Edelman JJ). See also McPhillamy [26].

9. As we will explain, the propensity evidence in the present case was cogent as to the appellant's propensity to engage in the possession and commercial distribution of methylamphetamine.  That propensity increased significantly the likelihood that the appellant committed the alleged offences.

10. The propensity evidence had 'significant probative value' in relation to the offences charged in the indictment.  The evidence was influential in the context of fact-finding.  It increased substantially the probability that the appellant had committed the acts alleged in the indictment.  There was a close and particular similarity between the appellant's alleged propensity, on the one hand, and the alleged acts the subject of the current offences, on the other.

11. Section 31A(2)(a) states, in effect, that propensity evidence will not be admissible under s 31A unless the court considers that, relevantly, the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value. We have already set out the State's case and the appellant's case at trial. The propensity evidence was capable of resolving any doubt as to whether there was a reasonable possibility that:

    (a)the cash in question was money the appellant had won at Crown Casino; and

    (b)the appellant was unaware of the existence of the relevant quantities of methylamphetamine, including the very substantial quantity in the vacant bushland adjoining the appellant's business premises (the appellant having been seen walking into the bush earlier in the day on which the police searched the vacant bushland and executed the search warrant at the appellant's business premises).

1. The interval between the commission of the prior offence and the commission of the alleged current offences did not (either alone or in combination with any other circumstances) deprive the propensity evidence of significant probative value. 

2. During part of the interval the appellant was held in custody.  The alleged current offences were not isolated incidents, but were part of an ongoing and apparently thriving drug dealing business.  The mere passage of time was not inconsistent with the appellant's alleged propensity having significant probative value.

3. The differences between the scale or magnitude of the appellant's drug dealing activities and his apparent position in the drug dealing hierarchy in the context of the prior offence compared to the context of the alleged current offences did not (either alone or in combination with any other circumstances) deprive the propensity evidence of significant probative value. 

4. The objective criminality associated with the prior offence (including the quantity and purity of the methylamphetamine, the amount of cash, the drug dealing paraphernalia and his apparent position in the drug dealing hierarchy) was substantial.  The appellant's admission that at the time of the offending in 2010 he was engaged in the commercial distribution of methylamphetamine was an important aspect of his propensity.

5. On the State's case in relation to the alleged current offences, the appellant's propensity had not only continued but had developed, intensified and flourished.

6. The objective criminality associated with the alleged current offences was greater than the objective criminality associated with the prior offence, but that factor did not diminish the importance of the propensity evidence. 

7. The facts and circumstances of the prior offence were in fundamental respects similar to the facts and circumstances of the alleged current offences.  There was a substantial and rational connection between the conduct the subject of the prior offence and the conduct the subject of the alleged current offences. 

8. It is true that the strength of the prosecution case on the issue of possession was stronger in the case of the prior offence than in the case of the alleged current offences.  However, that difference did not diminish the importance of the propensity evidence, having regard to the other evidence adduced by the State, in establishing the appellant's tendency to be in possession of and to distribute prohibited drugs for commercial gain including for large amounts of cash.

9. The propensity evidence had the requisite degree of probative value for the purposes of s 31A. The propensity evidence rationally affected, to a substantial extent, the assessment of the probability that, on the State's case as a whole:

   (a)the appellant had possession of the methylamphetamine the subject of counts 4 and 5; and

   (b)there was a reasonable suspicion that the cash the subject of counts 1, 2, 3, 7 and 8 was unlawfully obtained.

10. The ground of appeal is without merit.

Conclusion

1. The ground of appeal has no reasonable prospect of success.  Leave to appeal should be refused.  The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS

23 NOVEMBER 2018