R v Alesana
[2023] WADC 135
•30 JANUARY 2024
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 of the Crown's circumstantial case against each of the accused.
The Crown does not seek to adduce the evidence of the conversations in its case against the third accused, Mr Tusitala Tapuvae.
Each of Mr Alesana and Mr Kennach filed written submissions in opposition to the application.
Summary
For the brief reasons I will shortly give, I rule that the Crown is not permitted to rely upon the evidence of the conversations between Mr Alesana and Mr Kennach as propensity evidence pursuant to s 31A. However, I rule that the Crown is permitted to rely on and adduce the evidence as common law background relationship evidence.
Briefly, the case against each accused is that on the night of 23 September 2020 they took possession of a package sent from Germany to a post office box address in Mt Lawley which package had earlier been intercepted by Australian Border Force officers and found to contain board games into which packets containing methylamphetamine had been hidden. The officers substituted an inert substance for the methylamphetamine and repackaged the parcel before sending it to the post office box in Mt Lawley where on the night of 23 September 2020 Mr Alesana, having entered password details which had been provided to him by Mr Tusitala Tapuvae, opened the post office locker and took possession of the package.
The Crown case against each accused is a circumstantial case. The Crown relies upon a combination of facts and circumstances from which it says the only reasonable inference is that each of the accused intended to take possession of the package and were reckless with respect to whether the package contained a (commercial quantity of a) border controlled drug, namely the methylamphetamine, in that he was aware of a substantial risk that the package contained a border controlled drug and which, having regard to the circumstances known to him, it was unjustifiable to take the risk. Each of the accused proposes to make a number of formal admissions pursuant to s 32 of the Evidence Act. The only issue at trial will be as to the state of mind of each accused when Mr Alesana took physical possession of the package. That is, whether the accused was aware of a substantial risk that the package contained a border controlled drug, namely the methylamphetamine, and that in all of the circumstances known to him it was unjustifiable to take the risk when he came into possession of the package containing the substituted inert substance. Although the Crown relies upon a number of facts and circumstances in support of its case from which it says the only reasonable inference is that each accused was aware there was a substantial risk the package contained a border controlled drug, principally, the Crown relies upon the exchange of text messages on the night of the alleged offending in which the three participated in a group chat. Those messages or conversations are contained in Annexure B to the Crown's application.
Further, as against Mr Alesana and Mr Kennach the Crown also relies upon an exchange of text messages via Facebook Messenger between the two of them in which, on four separate occasions, 6 September 2020, 8 September 2020, 10 September 2020 and earlier on the day of 23 September 2020, each of the two accused discussed the acquisition and sale of various drugs in varying quantities, but in quantities significantly less than the quantity involved in the charged offence of 783.6 grams of methylamphetamine, which satisfies the definition of 'a commercial quantity' of a border controlled drug, being 750 grams or greater.
In summary, the four conversations relied upon are:[2]
4.1.a conversation between ALESANA and KENNACH between 11:26am and 11:17pm1 on 6 September 2020 which, on the Crown case, relates to the acquisition of an ounce of marijuana by ALESANA for $400, with the prospect that ALESANA would sell a quantity of that marijuana ('making like 170 back from a 400 O'). KENNACH asks to go with ALESANA to collect the drugs;
4.2.a conversation between ALESANA and KENNACH between 10:00pm on 8 September 2020 and 11:03pm on 10 September 2020 in which, on the Crown case, ALESANA discusses with KENNACH the acquisition of marijuana from KENNACH for a third party (Chloe);
4.3.a conversation between ALESANA and KENNACH between 11:49pm on 10 September 2020 and 5:55pm on 11 September 2020 in which, on the Crown case, ALESANA and KENNACH discuss going halves in 'a ball' (3.5g of powder drugs) for $500 each and the potential on-sale of a portion of those drugs to third parties (KENNACH-'I take out a g sell that to who ever on the bus haha');
4.4.a conversation between ALESANA and KENNACH between 12:48pm and 12:58pm on 23 September 2020 which, on the Crown case, relates to the potential acquisition of dexamphetamine tablets2.
(FN1: With a gap in messaging between 2:29pm and 11:16 pm on 6 September 2020.)
(FN2: ALESANA appears to decide against buying the tablets given the price of those tablets, as advised by KENNACH)
[2] Supplementary Crown Submissions in Support of Evidence Admissible Pursuant to s 31A and the Common Law, pages 2 - 3.
While not formally conceded, each counsel for Mr Alesana and Mr Kennach do not really take issue that conversations between Mr Alesana and Mr Kennach on those four separate occasions involve drug dealing or drug related activities.
The essential issue in this trial is whether any of the accused was reckless as to the circumstance that the package contained a border controlled drug.
Pursuant to s 5.4 of the Commonwealth Criminal Code a person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
The Crown submits:[3]
20.The evidence sought to be adduced goes to the circumstances known to KENNACH and ALESANA and whether each was aware of a substantial risk that the parcel contained a border‑controlled drug for the reasons outlined in the Crown's previous submissions.
21.Further, the prior participation of both KENNACH and ALESANA in small scale drug use, purchase and sale and the tendency of each to do so (at a time proximate to the charged offence) is evidence that each had a disposition which could have had an influence upon their willingness to be involved where there was a risk that the parcel contained a border‑controlled drug.
[3] Supplementary Crown Submissions in Support of Evidence Admissible Pursuant to s 31A and the Common Law, page 7.
Findings
Section 31A Evidence Act - propensity evidence
In my view the proposed evidence of the four conversations is not significantly probative of the fact in issue in this case. That is, the evidence is not significantly probative as to whether any of the accused was aware of the substantial risk that the package contained a border controlled drug. Taken at its highest the evidence of the four conversations establishes that at a time proximate to when the offending is alleged to have occurred on 23 September 2020 each of Mr Alesana and Mr Kennach were together involved in drug related activities or drug dealing activities in relatively low quantities of cannabis, dexamphetamine and methylamphetamine or a powdered drug. They were dealing in or associated with drugs at a value of hundreds of dollars but no more than $1,000. That is to be contrasted with the significantly more serious circumstances of the charged offending which alleges they attempted to possess 783.6 grams of methylamphetamine for which they were to be jointly paid $5,000. The evidence of the conversations does not establish that Mr Alesana or Mr Kennach were involved in or associated with significant quantities of methylamphetamine involving hundreds of grams.
In my view the evidence of the conversations does not establish a tendency or propensity on behalf of either of Mr Alesana or Mr Kennach to become involved with or have an association with methylamphetamine in greater quantities than a few grams for $1,000. The fact that Mr Alesana and Mr Kennach were involved in low level drug dealing activities is not significantly probative of whether they were aware there was a substantial risk that the package they were to collect contained a commercial quantity of a border controlled drug, namely the methylamphetamine. While the evidence, taken at its highest, arguably demonstrates they had a familiarity with a variety of drugs and drug dealing activities and were aware of the monetary value of drugs including methylamphetamine the evidence is not significantly probative of whether they were aware there was a substantial risk the package contained a border controlled drug. Their low level drug dealing activities as revealed by the four separate conversations does not make it more likely that they were aware that there was a substantial risk that the package they were to or intended to take delivery of contained a border controlled drug.
Therefore I rule that the Crown cannot rely upon the evidence of the four exchanges of text message or Facebook Messenger message conversations as propensity evidence.
Common law relationship background evidence
Relying upon the evidence of the four exchanges of text message or Facebook Messenger conversations as common law background relationship evidence the Crown submits the evidence of a drug dealing relationship or a relationship in which Mr Alesana and Mr Kennach were jointly involved in drug related activities as one of the facts or circumstances which in combination with other facts and circumstances support the Crown's circumstantial case from which it will ask the jury to draw the only reasonable inference that each accused was aware of a substantial risk that the package contained a border controlled drug. In particular, the Crown submits the evidence of the drug related conversations and activities between Mr Alesana and Mr Kennach show they had a familiarity with illicit drugs, including methylamphetamine, and its value which helps explain their state of awareness when they agreed to take possession of the package containing the methylamphetamine for payment of $5,000, an amount significantly greater than the cost or value of the drugs in which they had been dealing or in which they were associated. On the Crown case it helps explain that they were aware given the offer of the payment made to them that there was a substantial risk that the package contained a border controlled drug or a significant quantity of drugs, much greater than the quantities of drugs in which they had been dealing or had been associated with.
Further, the Crown relies upon what it submits is the different tone of the four conversations in early to mid-September 2020, which is in a jocular or easy-going mood, which is to be contrasted with the far more serious tone of the conversations on the day of 23 September 2020 in which the accused, on the Crown case, discuss how they are going to take delivery of the parcel containing the drugs and how they are going to hide their identity and ensure they do not leave any fingerprints and in which there is a degree of planning, using two separate cars, to travel to the Mt Lawley post office box. That more serious tone of conversation shows, the Crown submits, the accused were aware there was a substantial risk the package they were to take delivery of contained a significant quantity of a border controlled drug.
The evidence of the earlier conversations is also relevant to rebut an innocent association between Mr Alesana and Mr Kennach on the night of 23 September 2020 and an innocent explanation for coming into possession of the parcel containing the methylamphetamine.
It also, on the Crown case, puts into context the group chat conversations between Mr Alesana and Mr Kennach, and also Mr Tusitala Tapuvae on the night of 23 September 2020, in circumstances where Mr Tusitala Tapuvae had been contacted by a third party to collect the parcel who in turn contacted Mr Kennach who then contacted Mr Alesana. It helps to establish, on the Crown case, that from their previous association with drug related activities and their familiarity with drugs, the conversations between Mr Alesana and Mr Kennach on the night of 23 September 2020 were not innocent and that they were each aware there was a substantial risk the package contained a border controlled drug.
In my view the evidence is relevant and is admissible on that more limited basis. It is one of the circumstances which is relevant to and helps explain the state of awareness of each of Mr Kennach and Mr Alesana on the night of 23 September 2020, that is that they were aware there was a substantial risk that the package they were to collect for a payment of $5,000, in which they discussed hiding their identity and not leaving fingerprints, amongst other circumstances, contained a border controlled drug.
In permitting the Crown to lead the evidence on that more limited basis, the jury will be instructed that they cannot use the evidence as propensity evidence, in that they will be instructed if they are satisfied the four earlier conversations do relate to drug dealing activities or drug related activities, that evidence does not make it more likely they were aware there was a substantial risk that the package contained a border controlled drug. The evidence is only one of the circumstances in a circumstantial case from which the Crown says the only reasonable inference is that each of the accused were aware that there was a substantial risk that the package contained a border controlled drug. The evidence helps to fully understand what was being discussed in the group chat conversation between the three accused on the night of 23 September 2020 and put that conversation into its true context knowing, on the Crown case, that Mr Alesana and Mr Kennach had a drug dealing or drug association relationship.
Risk of prejudice
Defence counsel submit that the probative value of the proposed evidence of the four Facebook Messenger conversations is outweighed by the prejudicial effect of the evidence. In other words, the proposed evidence is unfairly prejudicial to the accused.
I accept that in a criminal trial the trial judge has an overriding discretion to exclude relevant evidence where its prejudicial effect outweighs its probative value.[4]
[4] R v Swaffield (1998) 192 CLR 158, 191 - 192.
In order for evidence to have probative value it is not necessary that it, in itself, is sufficient to establish guilt. Nor is it necessary that it is probative of every issue in the trial.[5]
[5] Le-Ta v The State of Western Australia [2020] WASCA 14 [44].
Evidence can have probative value because it is part of the Crown's circumstantial case. The probative value of the evidence must be evaluated in the context of the evidence as a whole.[6]
[6] Le-Ta v The State of Western Australia [55].
Evidence is not prejudicial merely because it strengthens the prosecution case or tends to prove the guilt of the accused. It is prejudicial only when the jury are likely to give evidence more weight than it deserves of when the nature or content of the evidence may inflame the jury or divert the jury from its task.[7] That risk can be moderated by the trial judge's directions.[8]
[7] Le-Ta v The State of Western Australia [44].
[8] Le-Ta v The State of Western Australia [51].
In my opinion the proposed evidence of the Facebook Messenger conversations are not unfairly prejudicial to Mr Alesana and Mr Kennach. A direction will be given to the jury as to how the conversations are relevant, and importantly, how they are not relevant and how they cannot be used. A jury will be instructed that they cannot use the Facebook Messenger messages as propensity evidence, that is, they cannot reason that if they are satisfied the messages shows each of the accused Mr Alesana and Mr Kennach had a drug dealing relationship that evidence makes it more likely that they committed the offences alleged in that it makes it more likely they were aware the package they were collecting contained a border controlled drug.
In my opinion, the probative value of the proposed evidence does not outweigh the degree of risk of prejudice to the accused.
In relation to the third accused, Mr Tusitala Tapuvae, in circumstances where the jury will be instructed that the Facebook Messenger messages between Mr Alesana and Mr Kennach are not relevant to and cannot be used in the Crown case against Mr Tusitala Tapuvae, the risk of prejudice to him by the admission of the evidence is reduced. I am of the view that a jury instructed in that way will abide by those instructions and will not use the evidence of the Facebook Messenger messages in determining the Crown case against Mr Tusitala Tapuvae. In circumstances where the Crown case is that Mr Tusitala Tapuvae was contacted by a third party to collect the package and he in turn recruited Mr Kennach it is likely the jury's focus will be on whether or not from the group chat messages they are persuaded the only reasonable inference is that he was aware there was a substantial risk the package contained a border controlled drug where he was being offered $5,000 to collect the package and deliver it to a third person.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Herron
15 NOVEMBER 2023
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