R v Gjoka No. DCCRM-96-1020 Judgment No. D3580

[1997] SADC 3580

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For The Verdict of His Honour Judge Bishop

Hearing

10/03/97 to 13/03/97.

Catchwords

Accused charged upon an information alleging two offences of having sold heroin to an undercover police officer and one offence of being in possession of heroin for the purpose of selling it to that officer - joint trial - pleas of guilty entered to the two offences of having sold heroin - whether evidence of those offences should be admitted in proof of the alleged offence of possession for the purpose of sale - R v Harriman [1989] 167 CLR 590;B v The Queen [1992] 175 CLR 599 considered and applied - evidence admitted for the purpose of establishing the relationship between the parties and whether the accused's possession was for an innocent or criminal purpose - accused found guilty of possessing heroin for the purpose of sale.

Representation

Director Of Public Prosecutions R:
Counsel: Mr S Smart - Solicitors: Director of Public Prosecutions

Accused NDUE GJOKA:
Counsel: Mr D Peek - Solicitors: Jon Lister

DCCRM-96-1020

Judgment No. D3580

25 March 1997

(Criminal)

R v GJOKA

Judge Bishop

Criminal

Trial by Judge alone

Ndue Gjoka ("the accused") was charged upon an information with having committed four offences:

count 1- selling heroin on 21 October 1995, at Adelaide, to another person (Ms. Doherty, an undercover police officer):contrary to section 32(1)(c) of the Controlled Substances Act, 1984 ("the Act");

count 2- selling heroin on 23 October 1995, at Adelaide, to another person (Ms. Doherty, an undercover police officer):contrary to section 32(1)(c) of the Act;

count 3- possessing heroin on 31 October 1995, at West Beach, for the purpose of selling it to another person (Ms. Doherty, an undercover police officer): contrary to section 32(1)(e) of the Act;and

count 4- unlawful possession of personal property (namely, money in the amount of $5,100) on 31 October 1995, at West Beach, which was reasonably suspected of having been stolen or unlawfully obtained:contrary to section 41 of the Summary Offences Act, 1935.

Upon his arraignment, the accused pleaded not guilty to each of those four alleged offences.

When the trial began on 10 March 1997, through his counsel, Mr. David Peek, the accused made application for the following orders:

\t that all evidence sought to be led against the accused be excluded and that the proceedings be permanently stayed, because the operation mounted against the accused involved unlawful, improper and unfair conduct, including deliberate deception of the accused;because the police operation constituted unlawful entrapment and it would be unfair to lead the evidence;and because the recordings of the alleged meetings between the accused and Ms. Doherty were in contravention of the Listening Devices Act, 1972;and

\t that Ms. Doherty be not permitted to refer to notes that she made in relation to alleged conversations with the accused, because the method of recording that had been adopted was unreliable and unfair to the accused;and because the notes were not sufficiently contemporaneous with the alleged conversations.

On voir dire hearing, the accused gave evidence whereby he told of the circumstances in which he had sold two capsules of heroin to Ms. Doherty for $100 in Hindley Street, Adelaide, on 21 October, 1995 (count 1), and had sold three capsules of heroin to her for $150 in Hindley Street on 23 October, 1995 (count 2).He also gave evidence of the circumstances in which police officers had found him in possession of three capsules of heroin on 31 October 1995 (count 3).

Police Officer Doherty then gave evidence, on the voir dire, of her involvement in the four alleged offences.During her cross-examination, the accused desisted in the application that had been made.He then elected to be tried before me, sitting as judge alone, upon the oral evidence which had been adduced on the voir dire hearing, upon the exhibits which had there been tendered, upon formal certificates which were tendered and upon a statement of agreed facts.

Being satisfied that special reasons here existed (namely, the accused's financial position and the unpredictable narrowing of issues as a consequence of the voir dire hearing), I granted the accused dispensation from compliance with the relevant Juries Rules and the trial proceeded before me sitting as judge alone, upon the evidence, exhibits, certificates and statement of agreed facts to which reference has been made.

Thereupon, the accused was re-arraigned and pleaded guilty to counts 1 and 2 (selling heroin) and not guilty to count 3 (possess heroin for sale).Upon the prosecution not tendering any evidence as to count 4 (unlawful possession), I found the accused not guilty of that alleged offence and the trial proceeded solely upon count 3.

On the evidence of the accused, when Doherty first telephoned him, on his mobile telephone on 21 October 1995, he had himself been purchasing and using heroin for about two months.He was then purchasing and using three or four capsules of heroin each day.On that day, he admittedly sold two capsules of heroin to Doherty in Hindley Street for $100 (count 1) (which capsules he had obtained for himself) because (he said), she told him that she was 'hanging out for' or in need of heroin, because she 'kept pushing and pushing' for it, because she called him "sweetie" and was wearing a dress which displayed most of her legs, because he had previously telephoned his heroin supplier and been told to help her and because he was attracted to and wanted again to see Doherty.He then arranged to meet her that night at Marcellina's Pizza Bar in Hindley Street, but she did not there attend.(I shall refer later to evidence of that occasion.)

On 23 October 1995, the accused admittedly sold three capsules of heroin to Doherty in Hindley Street for $150 (count 2) (which capsules he had that day obtained for himself), after she had again telephoned him, because (he said) she kept asking him for them, because he wanted to 'get close to her' and because she told him that 'next time we will be together'.The accused offered to find Doherty accommodation in Adelaide, she having told him that she resided in Whyalla.The accused said (in evidence, at 32) that, rather than take Doherty's money, he wanted to use the heroin with her and be together, but she gave him the money.He also said (at 143) that they would have shared the heroin if she had spent time with him.

Ms. Doherty subsequently telephoned the accused and unsuccessfully enquired whether he could arrange for her to purchase, for a friend, $1,500 worth of heroin.On 31 October 1995, she again telephoned him and asked whether he could 'do' three capsules for her.He replied, 'no, don't talk about that'. She called back and said, 'alright, you want to see me'.The accused said (in evidence, at 40) that he asked Doherty to come to his place;that he gave her his address at West Beach;and that he went out to buy Coca Cola with which to mix some of the three capsules of heroin (which he had that day purchased) for the purpose of 'using' that heroin together with (and not 'selling' it to) Doherty.When seated in his motor vehicle outside his West Beach address, he was arrested with three capsules of heroin in one of his pockets.

In her evidence, police officer Doherty told of the circumstances in which, and the times at which, she had made the notes upon which her declaration (exhibit P17) was prepared.She also explained that, for her personal safety, a listening device was employed to overhear some of the conversation which took place between her and the accused.That device was also used to record the conversation thereby overheard.She made use of those taped recordings in compiling her notes.Upon the evidence presented, I am satisfied that Ms. Doherty's notes were made at times sufficiently contemporaneous with the events and conversations to which those notes related.I am also satisfied that her notes and declaration can here be relied upon as being sufficiently accurate as to their content.

Having seen and heard Ms. Doherty, I accept her emphatic denials, in evidence, that she had dressed, behaved towards or spoken to the accused in the sexually provocative manner to which the accused here deposed.Upon her evidence, I am satisfied that Ms. Doherty properly conducted "undercover operations", within the meaning of that expression in section 2 of the Criminal Law (UndercoverOperations) Act, 1995;that is to say, operations "of which the intended purpose [was] to provide persons engaging or about to engage in serious criminal behaviour an opportunity to (a) manifest that behaviour;or (b) provide other evidence of that behaviour."Having provided the accused with such an opportunity, twice did he manifest serious criminal behaviour by (admittedly) selling heroin to Doherty on 21 and 23 October 1995 (counts 1 and 2).

Were the accused to have been sexually attracted to Ms. Doherty, then I am satisfied that his attraction did not result from any reciprocal show of affection by her.Seriously, however, do I doubt whether the accused was really sexually attracted to Ms. Doherty at all, both in view of his evidence that, although he was also using heroin, he did not offer to give any of it to her, and in view of his explicit evidence (at 29, 78, 98 and 99) that twice when he went to meet Ms. Doherty he was accompanied by a female friend (at Marcellina's and in Hindley Street on 31 October 1995).Although, as Mr. Peek indicated, upon this latter aspect the accused also said (at 88 and 100) that he went alone to Marcellina's, I considered that the accused had deliberately tailored his evidence to fit his asserted affection for Ms. Doherty.

In proof that the purpose for which the accused was in possession of the three capsules of heroin in his pocket, when arrested on 31 October 1995 at West Beach, was to "sell" that heroin to Ms. Doherty and not to "supply" it for their joint use that day, Mr. Smart contended that it is relevant and legitimate to have regard to the fact that the accused here pleaded guilty to having twice sold heroin to Ms. Doherty within 11 days of this alleged offence. That contention was not contested by Mr. Peek.

The applicable legal principle was expressed by McHugh J. in Harriman v R
(1989) 167 CLR 590, at 630:

"Evidence relating to the accused and the alleged victim ("the relationship cases"), although revealing other criminal conduct, will frequently be admissible because it tends to prove how or why the conduct the subject of the charge arose or because it makes more probable than not that the conduct occurred at the time or place or in the way alleged.In "the relationship cases", evidence of previous acts is admissible not to show a general criminal disposition but to show the nature of the relationship between the parties."

(My emphasis.)

To similar effect is this passage from the joint judgment of Dawson and Gaudron JJ. in B v The Queen (1992) 175 CLR 599, at 618 and 619:

"The relevant circumstances for present purposes occur when the evidence establishes a relationship which is not of an innocent character but points strongly to the commission of the offence in question.(See Harriman v R.) ..Had the evidence been tendered for the purpose of proving such a relationship, the onus would have rested upon the prosecution of establishing that the evidence went further than mere propensity or disposition and had an additional probative value which justified its admission despite its prejudicial effect.That question, although a question of degree, is nevertheless a question of law rather than of the exercise of a discretion. (See DPP v Boardman [1975] AC 421, at 457)."

(My emphasis.)

Guidance in determination of the admissibility and admission of such evidence was provided by Dawson J. in Harriman's case (supra) in this important passage (at 602):

"Propensity evidence is, of course, circumstantial evidence in that the only proof which it can offer is proof by inference.But it is circumstantial evidence of a dangerous kind because of the prejudice which it engenders.That is why the occasions upon which it is admissible are strictly limited.As with all circumstantial evidence in criminal cases, it should not be used to draw an inference adverse to an accused unless it is the only reasonable inference in the circumstances.But more than that, the evidence ought not to be admitted at all if the trial judge is of the opinion that there is a rational view of it which is inconsistent with the guilt of the accused:

see Hoch (1988) 165 CLR, at 296.If he is of that opinion, the evidence will not possess the requisite high degree of probative force."

(My emphasis.)

Brennan J. (as he then was) there said (at 594) that the admissibility of such evidence, "depends on its satisfaction of the criterion that its probative force clearly transcends its merely prejudicial effect:Hoch v The Queen
(1988) 165 CLR 292, at 300)."

In Harriman's case (supra), the evidence given by the prosecution witnesses that Harriman's previous relationship with a man named Martin involved dealing in drugs was regarded (by Dawson J., at 602 and 603) as being such cogent evidence of his being in Chiang Mai that "the only reasonable inference" was that he was there with Martin in order to obtain heroin and (by Brennan J., at 596) as tending to make more likely that Harriman's relevant contacts with Martin "were for a guilty rather than an innocent purpose:see Plomp v The Queen (1963) 110 CLR 234."

I am here satisfied that, as a question of law, the evidence of the accused admittedly having sold heroin to Ms. Doherty on 21 and 23 October 1995 has an additional probative value which justifies the admission of that evidence, despite its prejudicial effect;that is, to establish the nature of the relationship which existed between the accused and Ms. Doherty and whether the accused's possession of heroin on 31 October 1995 was for an innocent or criminal purpose.However, for it also to be required (as suggested by Dawson J. in Harriman's case (supra)), as a threshold test of admissibility (particularly in a trial where a judge is sitting without a jury), that the judge be of the opinion that there is no rational view of the evidence which is inconsistent with the guilt of the accused, would be, I most respectfully believe, prematurely to determine the ultimate question of the accused's guilt.

In the evidence of Ms. Doherty (declaration, exhibit P17), when she met the accused in Hindley Street on 31 October 1995, she asked him whether he could that day "help her out with three [caps]", for which she had $150.The accused replied that he had not brought anything with him, but that she should telephone him later that day "and I will fix".Asked, "When can you see me with three caps?", the accused replied, "In one hour, give me a ring in one hour - I go...I talk to my girl about accommodation for you.She said if she is nice" (see notes, exhibit P12).

About 2.00 p.m. on 31 October 1995, Ms. Doherty telephoned the accused and asked, "How did you go can I meet you with $150?"The accused replied, "Ring me, two hours, 4 o'clock, I see what I can do for you."About 4.00 p.m., Doherty again telephoned the accused who said that he would meet her at six o'clock."What about now?", Doherty asked."No, my car is being fixed I can't do now.You come here you come to West Beach you know Burbridge Road", the accused replied.Upon Doherty saying that she did not know where that was, they arranged to meet in Hindley Street at 5.00 p.m., the accused saying that he would catch a taxi if his car were not ready.

After waiting for the accused in Hindley Street until 5.30 p.m., Doherty again telephoned the accused, who asked her to go to Burbridge Road and meet him. Doherty said that she would try to 'see if she could get a street book' and that she would call him back.She called back about 6.25 p.m. and asked whether she could meet him "at Burbridge and South Road".The accused replied:

"You go to Burbridge turn right at South Road.Go to Port Road I meet you in carpark at Pizza Hut."

Ms. Doherty did not attend at the Pizza Hut.Instead, about 6.30 p.m., other police officers arrested the accused as he sat in his motor vehicle outside his residence at 72 Toledo Avenue, West Beach, with three capsules of heroin in his pocket.(When searching where he lived, the police found about $5,000 in bank notes (including the $250 from Ms. Doherty), which the accused said (in evidence) that he had won at the Casino.)In the evidence of Ms. Doherty (which I accept), she did not know where Toledo Avenue was situated and had not been there.

Upon the evidence, I am satisfied that the accused had not told Ms. Doherty his address at West Beach;that they had not arranged there to meet that day; and that they had arranged to meet at the Pizza Hut and not, as the accused said, at his house.I am also satisfied that the purpose for which they had arranged there to meet was that same purpose for which twice they had previously met in the preceding 11 days, that is, further to pursue that relationship between them in which the accused sold heroin to Doherty.

In view of my acceptance of Ms. Doherty's evidence (particularly her evidence that she had not been told the address of the accused), I do not consider that there here exists a reasonable possibility that the purpose for which the accused was in possession of the three capsules of heroin, on

31 October 1995, was to supply that heroin for the joint use of the accused and Ms. Doherty at his residence that day.I am satisfied beyond reasonable doubt that the accused was knowingly in possession of that heroin for the purpose of selling it to Ms. Doherty.

Upon these findings, I return a verdict of guilty of the offence alleged in count 3 of the information against the accused.