R v Alesana - [2023] WADC 135

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   R -v- ALESANA [2023] WADC 135
CORAM:   HERRON DCJ
HEARD:   7 & 14 NOVEMBER 2023
DELIVERED          :   15 NOVEMBER 2023
PUBLISHED           :   30 JANUARY 2024
FILE NO/S:   IND 2018 of 2021
BETWEEN:   THE KING

AND
JERICHO ALECARICHMOND ALAI ALESANA
STEVE FRANCIS KENNACH
KAISA RA TAPU TUSITALA TAPUVAE

Catchwords:

Attempt to possess border controlled drug - Admissibility of text message conversations between two accused about low level drug activities - Section 31A Evidence Act - Propensity evidence - Common law background relationship evidence - Matter in issue awareness of each accused as to whether package contained a border controlled drug - Circumstantial case

Legislation:

Criminal Code (Cth)
Evidence Act 1906 (WA)

Result:

Crown not permitted to rely on the evidence as propensity evidence but permitted to rely on the evidence as common law background relationship evidence

Representation:

Counsel:

The Crown	:	Ms C E Moss
First-named Accused	:	Mr A F Kraus & Ms K Louden
Second-named Accused	:	Mr S B Watters
Third-named Accused	:	Mr G C Christou & Ms K Murthy

Solicitors:

The Crown	:	Commonwealth Director of Public Prosecutions
First-named Accused	:	Karrie Louden Barristers and Solicitors
Second-named Accused	:	Simon Watters
Third-named Accused	:	Legal Aid - Perth - Criminal Law Division

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

Harriman v The Queen (1989) 167 CLR 590
Le-Ta v The State of Western Australia [2020] WASCA 14
R v Swaffield (1998) 192 CLR 158

HERRON DCJ:

By indictment dated 9 August 2023 each of the accused is charged with on or about 23 September 2020 at Perth he attempted to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methylamphetamine, and the quantity attempted to be possessed being a commercial quantity contrary to s 11.1 and s 307.5(1) of the Commonwealth Criminal Code.
This matter was due to proceed to trial before a jury commencing on 14 November 2023.
By application dated 7 November 2023 the Crown applies for leave to adduce evidence of SMS conversations between Mr Alesana and Mr Kennach referred to in Annexure A to the application. The application sought to adduce the evidence pursuant to s 31A of the Evidence Act 1906 (WA) and a High Court decision in Harriman v The Queen,[1] that is, essentially as common law relationship or background evidence - despite the reference to s 31A.
[1] Harriman v The Queen (1989) 167 CLR 590.
The application initially came on for mention before me on 7 November 2023 but, when none of the parties were ready to proceed to argue the application, the matter was adjourned to be heard on the first day of the trial on 14 November 2023.
The Crown later filed supplementary submissions seeking to lead the evidence of the SMS conversations as propensity evidence pursuant to s 31A Evidence Act, and also as common law relationship background evidence as a part…

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.

Continue reading R v Alesana

Details

AGLC: R v Alesana [2023] WADC 135
Case: [2023] WADC 135
Decision Date: 30 JANUARY 2024

CaseChat Overview and Summary

The case before the court involved two individuals, Alesana and his co-accused, charged with attempting to possess a border controlled drug. The primary issue before the court was the admissibility of text message conversations between Alesana and his co-accused, which contained references to low-level drug activities. The court had to determine whether these messages were relevant under section 31A of the Evidence Act and whether they constituted propensity evidence or common law background relationship evidence. Additionally, the court examined whether the messages could establish the accused's awareness of the contents of a package they were attempting to possess.

The court held that the text message conversations were relevant and could be admitted as they provided context for understanding the accused's state of mind and the circumstances surrounding the attempted possession. The messages were not considered mere propensity evidence but rather as evidence of background relationships and circumstances that could assist in determining the accused's knowledge and intent. The court emphasised that the messages did not solely rely on the propensity of the accused to engage in drug-related activities but rather on their relevance to the specific charge of attempting to possess a border controlled drug.

Ultimately, the court found that the text messages were admissible as they were relevant to the matter in issue, which was the accused's awareness of the contents of the package. The court concluded that the circumstantial case against the accused was sufficiently supported by the text message evidence, which demonstrated a common plan and understanding between Alesana and his co-accused. The court's reasoning affirmed the importance of context and relevance in the admissibility of electronic communications in criminal trials.

The court ordered that the text message conversations be admitted as evidence and that the trial proceed with the consideration of all relevant evidence. The accused were to be given the opportunity to respond to the evidence presented, and the court would assess the overall case based on the totality of the evidence, including the text messages, to determine the guilt or innocence of the accused.

Orders