R (Cth) v Mohr - [2020] NSWSC 81

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R (Cth) v Mohr [2020] NSWSC 81
Hearing dates: 12 February 2020
Date of orders: 12 February 2020
Decision date: 12 February 2020
Jurisdiction: Common Law
Before: Wilson J
Decision:
Evidence of conversations in VDE at paragraph 416 and VDF at 46 are admitted.

Catchwords:
CRIMINAL LAW – conspiracy to import a commercial quantity of a border controlled drug – question of admissibility of evidence of conversation concerning a gun – s 137 Evidence Act – whether evidence of reference to gun showed accused’s knowledge of the true purpose of the voyage – whether evidence of weaponry would lead jurors to stereotype the accused as a drug dealer – whether evidence would lead jurors to conclude that the accused had been involved in drug activity before – probative value is not outweighed by the danger of unfair prejudice – such prejudice as may arise capable of being addressed by direction

Legislation Cited:
Evidence Act 1995 (NSW)

Category: Principal judgment
Parties: Regina (Crown)
Darren Mohr (Accused)
Representation:
Counsel:
M England/C McGorey (Crown)
G Brady SC (Accused)
Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
McGirr Lawyers (Accused)

File Number(s): 2017/376756
Publication restriction: Judgment previously restricted pending finalisation of all co-accused trials and related appeals. Anonymised and/or redacted to excise any matters the subject of a non-publication order pursuant to s 7 of the Courts Suppression and Non-Publication Orders Act 2010 (NSW).

EX TEMPORE JUDGMENT (REVISED)

HER HONOUR: The Crown seeks to adduce evidence of a conversation alleged to have been had between the accused, Person W, and Person Z on the evening of 13 October 2016, relevant to the charge before the Court on indictment.
Mr Brady of Senior Counsel, for the accused, takes objection to the admission of the evidence, arguing that the evidence should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) on the basis that it's probative value is outweighed by the danger of unfair prejudice to the accused.
Before the Court are exhibits VDE and VDF, which contain the account expected to be given by each of the witnesses to whom I have referred. Person W, at paragraph 416 of his statement of 2 July 2018 describes meeting the accused fairly late in the evening at the Sydney Fish Markets, at a time when the motor vessel Dalrymple was expected to shortly depart for a voyage during which it was to collect a cargo of cocaine at sea.
Person W describes the accused as being friendly but firm, and making a number of inquiries about the boat and the preparations for the boat's departure, including, in preceding paragraphs, the gender of the persons on the boat, the capability of the crew, and so on.
Person W regarded the accused's demeanour as being different from that of a previous meeting that day, which had as its object the provision of cash to pay for expenses. Person W described the accused as having “a more serious manner”.
The accused is alleged to have queried the capabilities of the person in control of the vessel and, as a consequence of those enquiries, Person W deposed in his statement that he summoned Person Z, as that person, to speak with the accused.
Person W said that the accused asked Person Z general questions, including if there were any problems how Person Z would control those problems. Person Z is said to have confirmed that he was capable of dealing with himself and any situation which might arise.
Person W then recorded the following in his statement:

“Darren asked if [Person Z] was packing to which [Person Z] said 'no'. Darren said they were working with serious people here and they didn't want any problems or anything to go wrong, finishing with 'do you know what I mean?'“

That evidence is echoed by the evidence the Crown proposes to adduce from Person Z, recorded in his statement, exhibit VDF, of 10 April 2018. In that statement Person Z deposed that he was called from the Dalrymple to speak with Person W and another person he referred to as "Darren", who he saw standing near a car in the carpark, away from some lights.
In paragraph 45, Person Z referred to some conversation with the accused and, in paragraph 46, he gives an account of the conversation which I have just quoted from Person W’s statement. That is, he says:

“I then remember Darren asking me if I was carrying a gun. I advised I wasn't and I saw that Darren looked surprised by this. Darren stated 'most people carry guns for jobs like this.'“

It is the evidence which I have quoted to which objection is taken. Mr Brady argues that, whilst clearly probative in going to establish the accused's knowledge of the nature of the voyage as one involving illicit activity and specifically, international drug activity, there is a danger of unfair prejudice, and that danger is two-fold.
Firstly, it is argued that a reference to firearms of itself is likely to arouse some degree of passion in the jurors. Weapons always have an atmosphere connected to them, if one can express it in that way, and Mr Brady's submission is that a jury's attention is likely to be caught by reference to a firearm. It is possible that the jury would consider that reference in the overall context of what might be their own imperfect knowledge of the activities of international drug syndicates, and the jury would be in danger of placing too much weight upon it.
The logic of the submission is that the jury might either believe or speculate in the light of what they might know themselves from television or movies and such like, that drug dealers are people who have and use guns; that the accused is a person who, in the context of this allegation, has raised the subject of possession and potential use of a gun; therefore the accused must be a drug dealer. That is the first unfair prejudice identified by Mr Brady.
The second is based upon the anticipated testimony of Person Z, who refers to the accused as being apparently surprised by his answer in the negative to the question about carrying a gun, and the statement the accused is alleged to have made that "most people carry guns for jobs like this".
It is submitted that that evidence gives rise to a clear inference that the accused has been involved in activity of this nature before and is familiar with the sort of weaponry that drug runners carry, and that the jury would, therefore, speculate and even conclude that the accused must have been involved in such activity before to know what it is that drug runners typically carry.
In the course of discussion with the Bar table, I raised with senior counsel the prospect of directions curing those possible prejudices, but it is submitted that the potential prejudice is of such a nature that even a direction to the jury not to speculate about such matters and so on is incapable of curing it.
The Crown argues that the evidence is highly probative, because it goes well beyond the sort of oversight of an impending voyage that the land based representative of the international syndicate might have. It is beyond matters such as the adequacy of the boat's preparation and crew and goes directly to establish the accused's knowledge of the nature of the voyage.
Were this an anodyne voyage going fishing, or going to take survey coordinates, the Crown argues there would be no basis whatsoever for the accused to make an inquiry about firearms. Such an inquiry was rendered necessary because, as the accused is said to have commented, "these were serious people with whom the crew were dealing" and, as a consequence, some protection might be necessary.
As a species of evidence that goes to establish the accused's role in over-sighting the voyage, the evidence is probative, but that probative value would clearly be outweighed by the danger of unfair prejudice. I think Mr Brady is right and any mention of firearms in a trial in which firearms do not figure is capable of sparking the interest and attention of a jury beyond the value of the mention of a firearm itself.
If the Crown only relied upon this evidence as a means to establish the accused's overall involvement in the organisation for the voyage, then clearly it would have to be excluded pursuant to s 137, because, in my judgment, it's probative value on that basis would be well outweighed by its possible prejudicial effect. However, the Crown relies upon it specifically to go to the question of knowledge and knowledge is at the heart of this trial.
As I apprehend it from Mr Brady's opening to the jury and from some exchanges during the course of this argument, the accused does not dispute his physical conduct and, indeed, that has been the subject of police surveillance, so it may be that would be impossible to dispute. But what is at issue here is the question of knowledge.
Senior counsel opened to the jury on the basis that the accused understood that he was engaging with Person W and others connected with the motor vessel Dalrymple on the basis of some potential employment as a mechanic aboard the vessel. His case will be, as I understand it, that he had no knowledge, (and I set aside the question of any possible or vague suspicion), that the purpose of the voyage was to collect drugs at sea.
That case will get some leverage, it seems to me, from the fact that other crew on board the vessel when it sailed on 24 October 2016 were not informed of the true purpose of it, including the most significant crew member, being the captain.
It is clear from the Crown Prosecutor's opening to the jury that, once the vessel had sailed, the purpose of the voyage was made known to all of the crew. To that point some only were aware of its purpose and, upon being made aware of the purpose of the voyage, three crew members, including the captain and the engineer, probably the two most significant crew members, declined to take further part in it.
From the Crown's opening it seems that the captain took steps to immediately turn the boat around, and the only way of avoiding the return of the vessel to Sydney was to put the captain, the engineer, and the female crew member off the vessel at Lord Howe Island.
That evidence is capable of giving to the accused's contention, via cross-examination of witnesses, and, it seems, from the evidence he proposes to give, some weight independent of the weight it might have of itself.
The probative value of the disputed evidence needs to be assessed in the overall context of the way the parties propose to conduct their respective cases.
That is, the Crown says that the accused was aware of the purpose of the voyage and one of the measures by which the jury could assess knowledge is the fact that he believed a weapon to be necessary for the crew because of the serious criminal nature of the voyage being undertaken. I have outlined my understanding of the defence case, that being that the accused had no knowledge of the nature of the voyage.
In that context, his alleged suggestion that a firearm was necessary, it seems to me, does have very significant probative value. Much more so than if it were just a part of his overall organisational oversight of the voyage. It clearly goes to establish, if accepted by the jury that it was said in the context in which it is supposed to have been said, that the accused did understand the nature of the voyage, understood the character of the persons that the crew was to meet and, because of that knowledge, believed a firearm was required.
That significant probative value, as I judge the evidence to have, has to then be weighed against the danger of unfair prejudice. I have already said that I agree with Senior Counsel that there is always a danger of prejudice when a firearm is mentioned in a trial in which firearms play no other part. It is the sort of evidence which captures a jury's attention and which can be capable of being given significant focus by jurors.
I think there is also the possibility of prejudice arising in the second category identified by Mr Brady, that is that the jury might speculate that since the accused, on the evidence if accepted, seemed to know what sort of kit drug runners might carry in the nature of weaponry, that he must have been involved in this conduct before.
It is a question of whether, bearing in mind the nature of directions that could be given to the jury, those identified prejudices, firstly are unfair prejudices and secondly, are such as to outweigh the value of the evidence probative to the Crown's case.
With respect to the first identified unfair prejudice, I raised with Mr Brady the prospect of a specific direction to address that, and it is my view that a direction of the nature that I identified is capable of addressing any prejudice and would do so; that is on the basis that prejudice arises. I am not certain that I agree that it is unfair prejudice. I think there is force to the Crown's submission that one has to look at the mention of “packing” and “a gun” in the context of the charged offence. That is, a relatively sophisticated international arrangement to import a very large quantity of cocaine into the country, involving persons in Thailand and Sydney, and further persons in Chile and Colombia.
Against that background and in that context a single conversation referencing a firearm, in my view, whilst it could have prejudicial effect, would not have unfair prejudicial effect.
To the extent that there is prejudice, I think that can be cured by direction and I bear in mind those many authorities from the Court of Criminal Appeal to the effect that juries must be considered to comply with directions if they are given by trial judges, except where, of course, the prejudice is truly so extraordinary that no direction could address it. Here the prejudice that arises can readily be addressed by direction.
The second identified unfair prejudice, the speculation that the accused has been involved before, I think is something of less significance. The reality is likely to be that if the jury speculate, they would almost certainly come to the opinion that any person fulfilling the role that the accused is said to fulfil, with contacts in Thailand, someone who takes international flights to oversight drug importations, on the Crown case, must have done this before. One doesn't get to this level of an international organisation, importing large amounts of drugs, if one is a "newbie" to the activity. So, I don't think there is realistically any particular unfair prejudice that attaches to that conversation, of the nature identified.
Insofar as there is almost certain to be speculation by a jury that the people involved in these endeavours must have had some involvement in the drug world before, I think it is necessary and I will give a direction to the jury to address the prospect of speculation. But that, I think, comes about as a consequence of the overall nature of the Crown case, and not particularly and not unfairly as a consequence of this individual conversation.
So, whilst I acknowledge that there is potential prejudice here, I think such prejudice as there is is not unfair in the overall context of the case, and can be addressed by direction.
Accordingly I propose to permit the Crown to lead the evidence and rely upon it as establishing knowledge of the purpose of the voyage.

Amendments

07 November 2024 - Typographical amendment to coversheet.

Decision last updated: 07 November 2024

Medium Neutral Citation:	R (Cth) v Mohr [2020] NSWSC 81
Hearing dates:	12 February 2020
Date of orders:	12 February 2020
Decision date:	12 February 2020
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Evidence of conversations in VDE at paragraph 416 and VDF at 46 are admitted.
Catchwords:	CRIMINAL LAW – conspiracy to import a commercial quantity of a border controlled drug – question of admissibility of evidence of conversation concerning a gun – s 137 Evidence Act – whether evidence of reference to gun showed accused’s knowledge of the true purpose of the voyage – whether evidence of weaponry would lead jurors to stereotype the accused as a drug dealer – whether evidence would lead jurors to conclude that the accused had been involved in drug activity before – probative value is not outweighed by the danger of unfair prejudice – such prejudice as may arise capable of being addressed by direction
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Principal judgment
Parties:	Regina (Crown) Darren Mohr (Accused)
Representation:	Counsel: M England/C McGorey (Crown) G Brady SC (Accused) Solicitors: Solicitor for Public Prosecutions (Cth) (Crown) McGirr Lawyers (Accused)
File Number(s):	2017/376756
Publication restriction:	Judgment previously restricted pending finalisation of all co-accused trials and related appeals. Anonymised and/or redacted to excise any matters the subject of a non-publication order pursuant to s 7 of the Courts Suppression and Non-Publication Orders Act 2010 (NSW).