Kane (a pseudonym) v The King; Moon (a pseudonym) v The King - [2023] VSCA 305

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0068

S EAPCR 2023 0080

ADAM KANE (a pseudonym)[1]	Applicant
v
THE KING	Respondent
DANIEL MOON (a pseudonym)	Applicant
v
THE KING	Respondent

[1]So as to prevent any risk of prejudice to the proper administration of justice, these reasons for judgment have been anonymised by the adoption of pseudonyms in place of the names of the applicants.

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2023
DATE OF JUDGMENT:	7 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 305
JUDGMENT APPEALED FROM:	DPP v [Kane] [2023] VCC 663 (Judge Murphy)

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CRIMINAL LAW – Interlocutory appeal – Review of refusal to certify – Trial pending for aiding, abetting, counselling or procuring attempted possession of a commercial quantity of an unlawfully imported border controlled drug, cocaine – Foreign material – Report by US law enforcement agent containing hearsay representations – Whether business record – Whether trial judge should have given direction that foreign material not be adduced – Whether probative value of evidence outweighed by danger of unfair prejudice – Leave to appeal granted – Appeal allowed.

Foreign Evidence Act 1994 (Cth) ss 24 and 25; Evidence Act 2008 (Vic) s 137; Criminal Procedure Act 2009 s 295(3)(a) and 297(1).

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Counsel
Applicants:	Mr J Connolly
Respondent:	Mr S Ginsbourg and Ms N Grunwald
Solicitors
Applicant Adam Kane:	Chris McLennan & Co
Applicant Daniel Moon:	Kings Law Group
Respondent:	Commonwealth Director of Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

An indictment filed in the County Court charges the applicants, ‘Adam Kane’ and ‘Daniel Moon’, with aiding, abetting, counselling or procuring the attempted possession of a commercial quantity of an unlawfully imported border controlled drug, cocaine, by ‘FTRJ’.[2] The Amended Summary of Prosecution Opening[3] alleges that the applicants and FTRJ each played a role in an attempt to possess at least 25 kilograms of cocaine that they believed had been imported into Australia from Colombia. A jury is yet to be empanelled.
[2]Criminal Code (Cth), ss 11.1(1), 11.2(1) and 307.5(1).
[3]See Criminal Procedure Act 2009, s 182.
As part of its case, the prosecution seeks to adduce evidence of certain hearsay representations contained in two paragraphs of a report prepared by Special Agent Matthew Reidell (for convenience, ‘Reidell’), a Supervisory Special Agent with the US Immigration and Customs Enforcement (‘ICE’), Homeland Security Investigation (‘HSI’) (‘the report’).[4]
[4]See [14] below.
At a pre-trial hearing, counsel for both applicants challenged the admissibility of the hearsay representations in the report. In a ruling dated 24 April 2023, however, the trial judge refused to exclude the impugned evidence, in substance holding that the evidence was admissible under s 25 of the Foreign Evidence Act 1994 (Cth) (‘FEA’), and did not fall to be excluded under s 137 of the Evidence Act 2008 (Vic) (‘EA’) (‘the evidentiary ruling’ or ‘the interlocutory decision’). Thereafter, on 1 May 2023, the judge refused to certify under s 295(3)(a) of the Criminal Procedure Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSCA 305
Decision Date: 7 December 2023

CaseChat Overview and Summary

In the case of Kane v The King and Moon v The King, the applicants sought an interlocutory appeal from the refusal of the trial judge to certify that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. The applicants were facing trial for aiding, abetting, counselling or procuring attempted possession of a commercial quantity of an unlawfully imported border controlled drug, cocaine. The court was required to decide whether the trial judge should have directed that a report by a US law enforcement agent, containing hearsay representations, be excluded as foreign material, and whether the probative value of the evidence was outweighed by the danger of unfair prejudice. The court held that the considerations of probative value and unfair prejudice under the Foreign Evidence Act 1994 (Cth) and the Evidence Act 2008 (Vic) should be weighed together, and that the probative value of the evidence outweighed any unfair prejudice to the defence.

The court examined the legislative intent behind the Foreign Evidence Act and the Evidence Act, noting that the absence of persons who could shed light upon the representations recorded in the documents was not sufficient to warrant a discretionary exclusion under section 25 of the Foreign Evidence Act. The court held that using section 137 of the Evidence Act to exclude the evidence would be to undermine the legislative effect of the 2010 amendments to the Foreign Evidence Act. The court concluded that the evidence had significant probative value and was not outweighed by any unfair prejudice to the defence. The court held that an appropriate direction to the jury under section 165 of the Evidence Act would ordinarily overcome the problem to the extent that the statement should be admitted. The court refused to exclude the adducing of the report and held that the application to exclude the evidence was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Finally, with respect to the application of s 137 of the EA, the evidentiary ruling included the following:Should the document be excluded under section 137 of the Evidence Act?68Whether the further process of considering whether the document should be excluded if its probative value is outweighed by the danger of unfair prejudice under section 137, notwithstanding that the document, or the representations therein, have been held to be able to be adduced under the discretion in section 25 of FEA is a matter that was not directly addressed in Yau. In Milne at [311] the court noted for the same reasons that apply under section 25, and noting that under section 137 the requirement is that there be ‘unfair prejudice and not bare prejudice’, the court held that the same considerations apply.69As a matter of principle, if the evidence passes through the gateway of section 25 then I am not satisfied that a requirement to consider section 137 of the Evidence Act is necessary. It is difficult to see what additional factors would be weighed under section 137 that are not included in section 25 particularly given the reference in section 25(1) to the ‘interests of the parties’ and the reference to the probative value of the material, and unfair prejudice to any party under subsections 25(2)(b) and (e).70Using section 137 to exclude the evidence would, in my opinion, be to undermine the ‘legislative effect of the 2010 amendments to the FEA that the absence of persons who could shed some light upon the representations recorded in the documents is not sufficient (on its own) to warrant a discretionary exclusion under section 25 of the Act’. (Milne at [249]. 71It would also be consistent with the discussion in [Papakosmas v The Queen (1999) 196 CLR 297, 327 [97]]. Similarly, in Schanker v The Queen [2018] VSCA 94 at [101] which referred to the policy of section 60 of the Evidence Act which provides that the hearsay rule evidence does not apply to admitted for a purpose other than proof of an asserted fact.72Were it necessary to consider the matter, I would not exclude the document under the weighing process in section 137 of the Evidence Act.73In DPP (Vic) v Curran [2012] VSCA 244 evidence was admitted where the defence was unable to cross examine the maker of the statement. It was held that the probative value of the evidence outweighed any unfair prejudice. It was held that an appropriate direction to the jury under section 165 of the Evidence Act ‘will ordinarily overcome the problem to the extent that the statement should be admitted’. (At [55])74As I have noted, the evidence has significant probative value. For the reasons discussed are not satisfied that this is outweighed by the any unfair prejudice to the defence.….76Conclusion – application to exclude adducing [the report] is refused. As we have indicated, after the evidentiary ruling was delivered, counsel for the applicants asked the judge to certify under s 295(3)(a) of the CPA that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ultimately, the judge stated his conclusions concerning the application of s 25 of the FEA as follows:Conclusion: section 25 considerations favour admission 65Having regard to the considerations just discussed, I conclude that the representations in the document are of significant probative value to the prosecution. The representations would not be available just by calling Mr Reidell. The nature of the representations are such that they are likely to be reliable. Inferences from the document itself support reliability. Other contextual materials support that conclusion. 66The ability of the defence to cross examine the makers of the representations while giving rise to some unfairness, does not rise to unfair prejudice for the purposes of subsection 25(2)(e). A consideration of the purpose of the provisions of Part 3 of the FEA supports admission of the document. By calling Mr Reidell the prosecution is not seeking to subvert the purposes of Part 3, and could in any event rely on the document. 67For all these reasons I do not accept that the document should not be adduced. Finally, with respect to the application of s 137 of the EA, the evidentiary ruling included the following:Should the document be excluded under section 137 of the Evidence Act?68Whether the further process of considering whether the document should be excluded if its probative value is outweighed by the danger of unfair prejudice under section 137, notwithstanding that the document, or the representations therein, have been held to be able to be adduced under the discretion in section 25 of FEA is a matter that was not directly addressed in Yau. In Milne at [311] the court noted for the same reasons that apply under section 25, and noting that under section 137 the requirement is that there be ‘unfair prejudice and not bare prejudice’, the court held that the same considerations apply.69As a matter of principle, if the evidence passes through the gateway of section 25 then I am not satisfied that a requirement to consider section 137 of the Evidence Act is necessary. It is difficult to see what additional factors would be weighed under section 137 that are not included in section 25 particularly given the reference in section 25(1) to the ‘interests of the parties’ and the reference to the probative value of the material, and unfair prejudice to any party under subsections 25(2)(b) and (e).70Using section 137 to exclude the evidence would, in my opinion, be to undermine the ‘legislative effect of the 2010 amendments to the FEA that the absence of persons who could shed some light upon the representations recorded in the documents is not sufficient (on its own) to warrant a discretionary exclusion under section 25 of the Act’. (Milne at [249]. 71It would also be consistent with the discussion in [Papakosmas v The Queen (1999) 196 CLR 297, 327 [97]]. Similarly, in Schanker v The Queen [2018] VSCA 94 at [101] which referred to the policy of section 60 of the Evidence Act which provides that the hearsay rule evidence does not apply to admitted for a purpose other than proof of an asserted fact.72Were it necessary to consider the matter, I would not exclude the document under the weighing process in section 137 of the Evidence Act.73In DPP (Vic) v Curran [2012] VSCA 244 evidence was admitted where the defence was unable to cross examine the maker of the statement. It was held that the probative value of the evidence outweighed any unfair prejudice. It was held that an appropriate direction to the jury under section 165 of the Evidence Act ‘will ordinarily overcome the problem to the extent that the statement should be admitted’. (At [55])74As I have noted, the evidence has significant probative value. For the reasons discussed are not satisfied that this is outweighed by the any unfair prejudice to the defence.….76Conclusion – application to exclude adducing [the report] is refused.