Pope (a Pseudonym) v The Queen
[2017] VSCA 324
•2 November 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0227
| EMANUEL POPE (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | WEINBERG, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 November 2017 |
| DATE OF JUDGMENT: | 2 November 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 324 |
| JUDGMENT APPEALED FROM: | R v [Pope (a Pseudonym)] Ruling [No 2] (County Court of Victoria, 30 October 2017) |
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CRIMINAL LAW – Interlocutory appeal – Application to review decision by County Court judge refusing certification under s 295(3) of the Criminal Procedure Act 2009 – Applicant charged with importation of a border controlled drug (methamphetamine) ‘by proxy’ – Coincidence evidence – Whether trial judge erred in finding that probative value of evidence substantially outweighs prejudicial effect – Reasonably open to find evidence admissible – Application for review dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B J Saunders | Valos Black & Associates |
| For the Respondent | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
WEINBERG JA
PRIEST JA
BEACH JA:
This is an application by Emanuel Pope (a pseudonym) for review of a decision by a judge of the County Court, who had refused certification under s 295(3) of the Criminal Procedure Act 2009 (‘the CPA’). The review of such a decision necessarily entails consideration of whether leave to appeal against an interlocutory decision in a criminal matter should be granted.
Background facts
The applicant is presently standing trial in the County Court, charged with having, on 24 and 25 December 2013, imported a commercial quantity of methamphetamine into this country from South Africa. Importation of a border controlled drug is an offence contrary to s 307.1(1) of the Criminal Code (Cth) (‘the Code’).
The Crown alleges that the importation in this case involved the use of a ruse by which three women, LR, DN and HM, were recruited in Australia to travel to South Africa, ostensibly to carry out event promotion work there. The Crown says that the applicant and a co-offender, HE, planned to conceal a substantial quantity of methamphetamine in the luggage that the women were to bring back to Australia on their return flight. As we understand the position, and it has been confirmed this morning, it is not suggested that any of the women had knowledge of this plan. They were simply being used as dupes.
In late November 2013, the women were flown to Johannesburg. There, the applicant and HE organised for them to distribute flyers for what the Crown alleges was an entirely fictitious promotional event.
On 12 December 2013, HE left South Africa and flew back to Australia. His departure was sudden and unanticipated and, according to the applicant, unwelcome.
Several days later on 18 December 2013, a critical event, so far as the coincidence ruling under challenge in this application was concerned, took place. The so-called promotion event having been cancelled, HM flew back to Melbourne alone. The other two women were waitlisted for various flights, but could not leave South Africa immediately.
The applicant accompanied HM when she checked-in at Johannesburg Airport for her flight. According to HM, he instructed her to take back to Australia a suitcase that did not belong to her, and that she knew nothing about. She agreed to do so (‘the first event’). Upon her arrival in Melbourne, the applicant telephoned HM and arranged for the suitcase to be collected by his associate, a man known as ‘Jason’.
A week or so later, on 25 December 2013, both LR and DN arrived in Melbourne. The Crown alleges that prior to their leaving Johannesburg, the applicant, as he had done with HM, gave LR a suitcase, which she had never seen before. He instructed her to take the suitcase back to Australia.
It seems that LR checked the suitcase in, but somehow it came to be in DN’s possession by the time it was inspected by customs officers at Melbourne Airport. When searched, the suitcase was found to contain 2914.3 grams of pure methamphetamine. The drug was concealed inside a plastic bag located behind the internal lining of the suitcase. A commercial quantity of methamphetamine is 750 grams.
Interlocutory appeals - the relevant legislative regime
Section 295(2) of the CPA, provides that a party to a criminal proceeding may appeal to this Court against an interlocutory decision made in the proceeding. However, such an appeal can only be brought with the leave of this Court.
The expression ‘interlocutory decision’ is defined relevantly in s 3 of the Act, as a decision made by a judge, whether before or during a trial. It therefore includes a decision on a question of admissibility of evidence.
Section 295(3) provides that a party may not seek leave to appeal against such a decision unless the judge below certifies, in the case of an interlocutory decision concerning admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.
Section 296(1) provides that if a judge refuses to certify under s 295(3), the party which requested certification may apply to this Court for ‘review’ of that decision. There are strict time limits within which such an application must be made. On a review under the subsection, this Court must consider the matters referred to in s 295(3). If satisfied as required by s 297, it may give the applicant leave to appeal against the interlocutory decision.
Section 297 sets out the circumstances under which leave may be given by this Court. Under s 297(1)(a), the Court must have regard to the extent of any disruption or delay to the trial process that may arise if leave is granted. Under s 297(1)(b), the Court must also consider whether the determination of the appeal will render the trial unnecessary or substantially reduce the time required for the trial, or resolve an issue of law, evidence or procedure necessary for the proper conduct of the trial, or reduce the likelihood of a successful appeal against conviction.
Section 297(2) provides that this Court must not give leave to appeal after a trial has commenced, ‘unless the reasons for doing so clearly outweigh any disruption to the trial’.
Finally, s 297(3) provides that if this Court refuses leave to appeal under s 297, the refusal does not preclude any other appeal on the issue that was the subject of the proposed interlocutory appeal.
The argument as to admissibility
The Crown’s case against the applicant is put on the basis that he imported the methamphetamine ‘by proxy’. That is one mode by which the offence of importation can be established, pursuant to s 11.3 of the Code. That section provides:
A person who:
(a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and
(b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it;
is taken to have committed that offence and is punishable accordingly.
The Crown proposes to lead evidence from HM that when she left Johannesburg on 18 December 2013, the applicant had insisted, at the airport, that she bring back to Australia a suitcase that was not her own.
The defence objects to this evidence being led. It accepts that the evidence concerning what took place at the airport on that day meets the test of ‘coincidence evidence’, as set out in s 98(1) of the Evidence Act 2008. However, the defence submits that this evidence does not satisfy the additional requirement, stipulated by s 101(2). The defence says that the probative value of the evidence concerning the first event does not ‘substantially outweigh any prejudicial effect it may have on the accused’.
By notice dated 27 October 2017 (which it must be said was provided very late to the defence), the Crown set out the basis upon which it would contend that the evidence of the first event, qualified as coincidence evidence. The notice contains elaborate detail, identifying each aspect of the applicant’s conduct on that occasion, and comparing it with the conduct, a week later, that is said to have constituted the offence of importation ‘by proxy’.
The Crown draws attention to the fact that, the applicant told HM, at Johannesburg Airport, that she was to bring with her to Australia a suitcase that did not belong to her. That particular suitcase was wrapped in plastic. As HM already had her own suitcase with her, the extra suitcase would mean that she was carrying luggage that was too heavy to take on board. The applicant offered to pay for the excess weight. However, the airline insisted that HM could bring with her only one suitcase, irrespective of payment. The applicant then told HM that she should take his suitcase, rather than her own. He told her that when she arrived in Melbourne, she was not to give the suitcase to HE, but rather, to ‘Jason’.
After HM’s arrival in Melbourne, the applicant called her from South Africa. He asked her whether she still had the suitcase. She replied that she did. She was told to meet ‘Jason’ at an IGA Supermarket and give him the suitcase. Later that day, the applicant again called HM and asked her whether ‘Jason’ had collected the suitcase. It seems that he had done so.
As previously indicated, the Crown seeks to rely upon the first event as coincidence evidence under s 98 of the Evidence Act 2008. The Crown’s reason for doing so is in order to prove that the applicant did certain acts that are said to be relevant to a key fact in issue.
The acts, on the part of the applicant, that are said to be so relevant, are:
·the applicant having given LR a suitcase at the airport that did not belong to her, and which she knew nothing about,
·the applicant having instructed LR to take the suitcase to Australia,
·the applicant having told LR and DN that the suitcase contained the promotion uniforms and other material that had been intended to be used in South Africa,
·the applicant having told LR not to give the suitcase to HE upon her return to Australia, and
·the applicant having told LR that either he would collect the suitcase in due course, or arrange for someone else to do so.
The Crown submitted that the evidence concerning the first event clearly met the test of coincidence evidence. It contended that this evidence supported the Crown case as to the physical element of importation, namely that the applicant had imported the drug into Australia ‘by proxy’.
The applicant, in his Defence Response, submitted that whatever took place in South Africa concerning the concealment of drugs had nothing to do with him. He claimed that HE alone was responsible for having recruited the three women. They had been flown to South Africa at HE’s behest to promote his own business venture. The applicant had merely agreed to assist, behind the scenes.
The applicant acknowledged, in his Defence Response, that he had accompanied HM to the airport on 18 December 2013. However, he claimed that it was she who decided that she would take the suitcase containing the promotional materials back to Australia, and leave her own suitcase behind. He claimed that he had nothing at all to do with that decision. He acknowledged that he had contacted a man whom he believed to be ‘Jason’, HE’s cousin, in order to ensure the return of the promotional materials. He added that he was annoyed with HE for having left South Africa suddenly, thereby abandoning the three women.
With regard to LR and DN’s departure from South Africa on Christmas Day, the applicant agreed that he had also accompanied them to the airport. He denied having procured the suitcase that was later found to contain the drugs. He claimed that HE had obtained that suitcase, and left it behind for the applicant to arrange to have it brought back to Australia. He agreed that he had assisted LR and DN with their luggage. He denied any knowledge of the drugs that had been concealed in the suitcase, no doubt, it would be said on his behalf, by HE.
The Crown submitted that not only did the evidence concerning the first event meet the test of coincidence evidence, it also satisfied the requirements of s 101(2). This was on the basis that there were sufficient similarities between HM’s description of what occurred on the day of her departure, and the description by the other two women of what took place a week later. The Crown submitted that it was utterly improbable that the two events would have occurred, a week apart, in circumstances where the applicant had nothing to do with the arrangements made to have either suitcase brought back to Australia.
The trial judge’s ruling
The trial judge in a ruling delivered on 30 October 2017 (the day before the jury was then expected to be empanelled), found, that the first event satisfied the test for coincidence evidence under s 98. She concluded that this evidence did ‘rationally affect’ the assessment of the probability that the applicant had instructed LR to take the suitcase, which contained the drugs, back to Australia. That evidence also made it more likely that the suitcase belonged to the applicant, and not HE.
In the course of her ruling, her Honour concluded that the coincidence evidence had significant probative value. In so holding, she recognised that a good deal more than mere probative value was required to meet the language of s 98. She spoke of the ‘high threshold of admissibility’ for coincidence evidence (referring, by that stage, to the additional hurdle posed by s 101(2)).[2]
[2]She referred to Semaan v The Queen (2013) 39 VR 503 where Priest JA carefully analysed the nature of the dual threshold for the admissibility of coincidence evidence.
Importantly for present purposes, counsel appearing for the applicant at trial properly conceded that HM’s evidence met the test for coincidence evidence under s 98(1)(b). In other words, he relied solely upon s 101(2) as the basis for exclusion.
The trial judge observed that there was a ‘remarkable similarity’ between the events said to have occurred on the two occasions at Johannesburg Airport. That was a prelude to her ruling on the s 101(2) question.
The section 101(2) issue
Counsel for the applicant submitted below, and again before this Court, that the probative value of the coincidence evidence did not ‘substantially outweigh’ any prejudicial effect that it might have. He noted that there was no evidence that the suitcase brought into Australia by HM had contained any drugs. He submitted that were the evidence of the first event to be admitted, the applicant would suffer irreparable prejudice. The jury would be likely to infer, by way of speculation, that the suitcase HM had brought to Australia had also contained drugs.
Counsel further submitted that no direction to the jury could possibly overcome this prejudice. Counsel referred, in that regard, to Sokolowskyj v The Queen.[3] In that case the New South Wales Court of Criminal Appeal observed, in the context of an appeal based on evidence said to have been wrongly admitted, that:
Had his Honour carried out the weighing exercise required by s 101, he should have concluded that the probative value of the evidence was not high and that it was substantially outweighed by the risk of unfair prejudice.[4]
[3](2014) 239 A Crim R 528 (‘Sokolowskyj’).
[4]Ibid 541 [57].
In response, counsel for the Crown submitted that, unlike the position in Sokolowskyj, the probative value of the coincidence evidence in this case was high, and substantially outweighed any prejudicial effect it might have on the applicant. She submitted that this evidence enabled the jury to consider the applicant’s conduct on 24 December 2013, in context. She submitted that the evidence concerning the first event tended to rebut the applicant’s claim that he had nothing whatever to do with the importation of these drugs.
Counsel submitted that any prejudicial effect could be ameliorated by clear directions to the jury that they were only to use this evidence as bearing upon the physical element of the offence of importation, namely, procuring by conduct. They could be told that they were not to speculate regarding the possibility that there may have been drugs in the suitcase that HM had brought with her to Australia.
The trial judge found that the probative value of the coincidence evidence was ‘very high’. She was satisfied that the probative value ‘substantially outweighed’ any prejudicial effect it may have on the applicant. She indicated that she would give strong and detailed directions to the jury to the effect that they were not to speculate as to the contents of the suitcase that HM had brought to Australia. She would tell them, in clear terms, that they could not infer that it contained drugs. On that basis, she ruled the coincidence evidence to be admissible.
The certification question
Subsequently, her Honour was asked by counsel for the applicant to certify, pursuant to s 295(3)(a) of the CPA, that the evidence, if ruled inadmissible, would ‘eliminate or substantially weaken’ the prosecution case. She declined to do so. She gave no reasons for her refusal to certify. She ought to have done so, even if only in brief terms.
Nonetheless, it may reasonably be inferred that her Honour either considered the objection to the admissibility of this evidence to be so lacking in cogency as to warrant her refusal to certify. Alternatively, she was not persuaded that the exclusion of this evidence would ‘substantially weaken’ the prosecution case.
Irrespective of her Honour’s assessment in that regard, it is clear that an applicant for leave to appeal against an interlocutory decision, that is taken after a trial has commenced, must overcome a significant obstacle. This Court is required under s 297(1)(a) of the CPA, to consider whether it is in the interests of justice to grant leave, having regard to the extent of any disruption or delay to the trial process that may arise if leave is given. As previously indicated, her Honour was about to empanel a jury on the day after she delivered the ruling presently under challenge, although we were told this morning that the empanelment of the jury has now been put back.
Perhaps the main obstacle to the grant of leave to appeal in a case such as the present lies in the fact that this Court will approach decisions of the type under challenge here on the basis of the reasoning contained in House v The King.[5]
[5](1936) 55 CLR 499 (‘House’).
In KJM v The Queen,[6] this Court dealt with the nature of an interlocutory criminal appeal. An issue had arisen as to whether the Court should follow a then recent decision of the New South Wales Court of Criminal Appeal in DAO v The Queen[7] where it was held that an interlocutory appeal from a decision under ss 97, 98 or 101 of the Evidence Act 1995 (NSW) (dealing with tendency or coincidence evidence) was governed by the principles laid down by the High Court in House.
[6](2011) 33 VR 11 (‘KJM’).
[7](2011) 81 NSWLR 568.
In KJM, the Court held that House principles governed interlocutory criminal appeals in Victoria. It was said that the case for appellate restraint at the interlocutory appeals stage was even stronger in this State than in New South Wales. This was because in contrast to the system of interlocutory appeals operative there, the CPA allows a defendant to seek to challenge an evidentiary ruling by way of interlocutory appeal. It was noted that, as had been said in CGL v Director of Public Prosecutions (No 2),[8] the clear legislative intention was that interlocutory appeals on matters of evidence be strictly confined.
[8](2010) 24 VR 482.
Because the present application for review must be dealt with under the principles laid down in House, the question to be considered, at this stage, is whether the trial judge’s ruling, refusing certification, and admitting the coincidence evidence, can be seen to be erroneous in the House sense.
In other words, although s 101(2) of the Evidence Act 2008 is not specifically couched in the language of discretion, the manner in which an appeal against a decision under that section is to be determined by this Court, is governed by principles similar to those applicable to a challenge to the exercise of judicial discretion.
In that regard, it is not enough that the members of this Court consider that, if they had been in the position of the trial judge, they might have arrived at a different decision, under the terms of s 101(2). It must appear that some error has been made in arriving at the decision, analogous to an error vitiating the exercise of discretion. If the judge below has acted upon a wrong principle, if she has allowed extraneous or irrelevant matters to guide or affect her, if she has mistaken the facts, or if she has not taken into account some material consideration, then her decision may be set aside.
Of course, some decisions may appear on their face to be unreasonable or plainly unjust. In such a case, this Court may infer that in some way there has been a failure properly to exercise the power conferred by s 101(2) to exclude this evidence. The nature of the error may not be discoverable but it must be clear that the decision arrived at was not reasonably open.
That is not, in our view, the position regarding the trial judge’s decision to admit the evidence in the present case. Her Honour applied the correct legal principles to that decision, and she did not take into account any irrelevant matters. She had regard to all matters she was legally bound to consider. Her decision cannot possibly be described as irrational or wholly unreasonable. It was reasonably open to her Honour to conclude that the probative value of the impugned evidence was not merely ‘significant’, but also that it substantially outweighed any prejudicial effect that it might have on the accused.
As we would, in any event, refuse leave to appeal against the coincidence ruling, the application for review of the refusal to certify should itself be dismissed.
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