R v JEISMAN (No 2) - [2014] SADC 15

District Court of South Australia
(Criminal)
R v JEISMAN (No 2)
[2014] SADC 15
Ruling of His Honour Judge Slattery (ex tempore)
14 January 2014
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY
Notice of Intention filed by the Director of Public Prosecutions to adduce evidence of discreditable conduct of the accused – first item uncharged and charged acts of possession of items – second item charged and uncharged acts of trafficking and interactions with drug users, buyers and/or dealers – intention of the prosecution to lead this evidence includes an intention concerning propensity evidence - probative value must substantially outweigh any prejudicial effect - proper directions to be considered by his Honour regarding permissible use and uses of the evidence and to exclude any propensity reasoning.
Controlled Substances Act 1984 s.32, s.43; Evidence Act 1929 s.34P, s.34R, referred to.
R v C, CN [2013] SASCFC 34; R v Soteriou [2013] SASCFC 114; R v McGee (1993) 61 SASR 208, applied.

R v JEISMAN (No 2)
[2014] SADC 15
JUDGE SLATTERY

In this matter the defendant is charged with trafficking in a controlled drug contrary to s.32(3) of the Controlled Substances Act 1984.
The relevant factual background of the matter is that on 5 January 2013 police were making observations of the house at Ferryden Park. The defendant left that premises on a bicycle at about 7.20 p.m. and at that time he was holding a small dog. He was pursued by the police and ultimately apprehended a small distance from the Ferryden Park address.
At the time of his apprehension the defendant was searched. During the search the police located on the defendant a throw knife, a white plastic container holding eight small plastic bags, six of which contained methylamphetamine totalling 0.72 g. Also identified was $310 cash in a tine and two empty plastic bags. Other matters were located which are not relevant.
The police then returned to the premises at Ferryden Park and acting under the authority of a general search warrant searched those premises. At the premises the police located scales, a black bandana, a bong and a mobile phone which contained messages, photos and sexually explicit videos. The text messages are those messages from which some 37 messages have been extracted by the Director.
By notice dated 9 August 2013 the Director gave notice of an intention to adduce evidence of discreditable conduct under s.34P of the Evidence Act.
The nature of the discreditable conduct was described as being on two bases; the first was charged and uncharged acts of possession of items associated with drug use and drug dealing, including relevantly electronic scales, cash, plastic bags and a knife.
The second item of discreditable conduct was described as charged and uncharged acts of trafficking and interaction with drug users, drug buyers and/or drug dealers including cash and (relevant) text messages.
The use or uses of the evidence which is said to be permissible uses under s.34P(2) are set out in para.3 of the notice and para.4 of the notice identifies that the evidence is to be adduced as circumstantial evidence of a fact in issue, namely that on 5 January 2013 the defendant possessed methylamphetamine for the purposes of sale.
The Director has delivered detailed written submissions in support of the notice. In particular the Director points to existence of the SMS messages on a telephone found at a home at Ferryden Park, which the defendant had left immediately prior to being apprehended by police shortly after 7.20 p.m. on that day, electronic scales also located at the same house, cash and a knife located on the defendant’s person were all relevant and admissible and may be used to support an inference that the defendant was in the business of selling drugs.
It is not in contest in this matter that the total amount of methylamphetamine found upon the person of the defendant at the time of his apprehension totalled 0.72 g of methylamphetamine in six small plastic bags. There was also $310 cash, two empty plastic bags and a knife found on his person. The total methylamphetamine, weighing some 0.72 g, does not activate the presumption for s.32(5) of the Controlled Substances Act and therefore the burden of proof in respect of all matters to be proved beyond reasonable doubt falls upon the prosecution without the benefit of any presumption.
In relation to the text messages; the Director has provided a schedule of six pages outlining 37 texts (in a total of some 222 texts) sent to or received by the telephone found at a house in Ferryden Park. Some of the texts are identifiable as conversations concerning money, some are identifiable as conversations containing what are said to be well known euphemisms for drug dealing such as ‘lollies’ and other such references. One, No.16, is a text sent by Telstra concerning the need for the defendant to recharge the credit on his phone subscriber account. In my opinion, no relevance attaches to that piece of evidence and it is to be excluded. The defendant is the subscriber on the SIM card details held with Telstra.
Under the settled law of South Australia it is necessary that I consider and then deliver reasons for my findings on the s.34P notice filed by the Director and I refer in particular to the decision of the Court of Criminal Appeal in this State in R v C, CN [2013] SASCFC 34.
In the written submissions filed on behalf of the Director it is correctly submitted that the intention of the prosecution to lead the evidence includes an intention concerning propensity evidence and therefore s.34P(2)(b) is to be considered.
It is appropriate that I set out the whole content of s.34P(1) and (2), and I do so hereunder. I will also refer to s.34P(3), (4) and (5) without reproducing those subparagraphs here. In reaching this decision I have had regard to these subsections. As I have already said this section has received consideration from the Court of Criminal Appeal in the decision of R v C, CN. The relevant portions of the judgment of White J who wrote the judgment of the Court are in this context found in paras.[18], [24], [24], [25], [26], [27] of his Honour’s judgment.
Section 34P(1) and (2) read as follows:-
“34P—Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.”
Under the decision of the Court of Criminal Appeal in R v C,CN, it is necessary that I fulfil a number of steps required by s.34P of the Evidence Act. The first is that I must identify the use or uses that the proposed evidence must be admitted. The second is that I must be satisfied that the probative value of the evidence for the permissible use or uses substantially outweighs any prejudicial effect it may have on the defendant. In doing so, I must have regard to whether the permissible use is and can be kept sufficiently distinct from the impermissible use so as to remove the risk of the evidence being used inadmissibly. Thirdly and as is the case in this matter, whether the permissible use relies on the propensity of the defendant as circumstantial evidence of the fact I must be satisfied that the evidence is of strong probative value.
In the prosecution case of this matter, it is necessary for the Director to prove each of the elements of trafficking under sub-s32(3) of the Controlled Substances Act. That subsection reads as follows:-
“32—Trafficking
(3)     A person who traffics in a controlled drug is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—$50 000 or imprisonment for 10 years, or both;
(b)     for an aggravated offence—$75 000 or imprisonment for 15 years, or both.”
The matters described in the subsection are matters to be kept clearly in mind as part of a background of the decision in this matter.
In my consideration of the content and operation of s.34P it is also now necessary to identify the decision of the Court of Criminal Appeal in R v Soteriou [2013] SASCFC 114. Vanstone J wrote the judgment of the Court. At para.[14] of the judgment her Honour emphasised that careful regard must be had to the specific wording of s.34P(1) when assessing the evidence identified as constituting discreditable conduct evidence for the purposes of s.34P of the Evidence Act. Her Honour said as follows:-
“[14] I agree with both counsel that the possession of the resealable plastic bags was not such evidence. Certainly the prosecution argued that the plastic bags were the tools of trade or paraphernalia or indicia of trading by a drug dealer – indeed there was some evidence from a police officer in this trial to that effect – but the very fact that the appellant still had possession of them indicated that they had not been used in the course of a drug trade. The subsection catches evidence suggesting that a defendant has, that is in the past, engaged in discreditable conduct; not that he might intend to do so in the future.”
Her Honour made particular reference to the past tense of the words ‘has engaged’ where those words appear in s34P(1). Her Honour indicated those words are to be understood as having deliberately been framed and used in the past tense: that is: ‘... in the past engaged in discreditable conduct; not that (he) might intend to do so in the future.’
A number of issues arises out of the emphasis placed upon the tense of these words in s.34P(1). A particular item of evidence may likely have been used (in the past) but will also just as likely be used (in the future) in any particular activity. Notwithstanding, that evidence will have strong probative value. That strong probative value arises from the existence of the piece of evidence itself as well as from a consideration about the totality of the evidence to be led, where that piece of evidence may fit within the overall “mosaic” of evidence in the trial and, perhaps, the purpose for which the evidence is led.
In Soteriou, the defendant’s house was searched. A phone was found that contained text messages with obvious drug trade references. A notebook containing what are colloquially called “tick lists” was also found as was a large number of plastic resealable bags. The police found a cache of drugs in a camera bag in the street stormwater gutter connection of a neighbouring property which disclosed the DNA of the defendant.
The case for the prosecution relied on the inferences coming from the whole of the mosaic of the evidence to prove that the defendant was in possession of the camera bag and the drugs for the purpose of trafficking. No argument was put on appeal that the three items (phone, camera bag and notebooks) were inadmissible. They had a strong probative value. It was in this background that her Honour decided that the plastic bags that were unused did not fall within s34P. The issue for determination was then whether s34P(2)(a) or (b) had application. Her Honour decided that in light of more recent authority that these items fall into the category of propensity or disposition evidence for s34P(2)(b) and that it possessed the quality of having strong probative value.
On my reading of the Court’s decision in Soteriou, it is necessary to obtain a clear understanding of the evidence sought to be led, its purpose and when the evidence fits in the overall mosaic of the evidence in the case (as best as can be assessed). The Court did not exclude the plastic bags from the evidence. The evidence of the existence of the plastic bags did not constitute evidence of discreditable conduct. The evidence was still admissible. The same consideration arises in this case.
For present purposes, the relevant matter to identify is the connection between the factual background of the circumstances of this case and the matters in issue raised in argument under s.34P. In paras.[54], [55] and following of the Director’s submissions, the Director primarily contends that the material is relevantly admissible as supporting an inference that the defendant was in the business of selling drugs. The Director contends secondly that this evidence is relevant to the question of whether the defendant had a commercial purpose or motive associated with the methylamphetamine located on his person and if it be accepted that the defendant was trading in drugs, that would tend to raise the improbability of the drugs located on his person being other than his stock in trade.
The Director correctly identifies that a substantial portion of this evidence is propensity evidence, therefore if s34P has application then, under S34P(2)(b), it is necessary to identify that the evidence has strong probative value having regard to the particular issues at trial.
On the submissions made by the Director, I agree that the portion of the evidence is to be treated as propensity evidence raising the question of inferences about whether the defendant had a propensity to engage in the drug trade at a time of him being located with eight plastic bags on his person, six of which contained methylamphetamine.
I also agree with the submission of the Director that proof of the intention of the defendant to sell prohibited drugs is essential to the proof of an offence of trafficking in a controlled drug pursuant to s.43(3) of the Controlled Substances Act. I refer to R v McGee (1993) 61 SASR 208.
Applying the decision of the Court of Criminal Appeal in Soteriou, the two empty plastic bags and the throw knife are not evidence suggesting that the defendant has engaged in discreditable conduct (my emphasis). Despite that finding, it is my opinion that both of these pieces of evidence are admissible and are strongly probative of the issue in this case; whether it may be proved beyond reasonable doubt that the defendant has trafficked in a controlled drug.
In my view, the scales fall into a different category. By their nature, their existence within the overall mosaic of evidence would tend to suggest that the defendant has engaged in discreditable conduct as that term is described in s34P(1) of the Evidence Act 1929. It is sufficient to say that those trafficking in drugs will use scales to weigh out particular transactions.
The second item of discreditable conduct is the alleged and uncharged act of trafficking and interaction with drug users, buyers and/or dealers including cash and relevant text messages. For the same reasons, this evidence tends to suggest that the defendant has engaged in discreditable conduct. A perusal of the text messages discloses the use of the usual euphemisms of the drug trade as well as references to exchanges of money. Those trafficking in drugs will often carry amounts of cash in particular denominations obtained from the transactions in which they are involved.
The discreditable conduct evidence must be admitted for a permissible use that relies on a particular propensity or disposition as circumstantial evidence of a fact in issue – namely the question of possession for the purpose of trafficking the drug (s34P(2)(b) Evidence Act). Thus, the evidence must have a strong probative value. In my opinion this evidence and the other evidence falling outside of s34P does have strong probative value having regard to particular issues at trial.
The defendant raised a number of contentions in relation to the evidence sought to be led. No serious argument was put about the possession of the knife upon the person of the defendant. On the question of the uncharged acts, Ms Stephens submitted that it is necessary to understand the inferences that may be sought to be drawn from the evidence to be led by the Director. For example, Ms Stephens objected to evidence being led of the discovery of scales within the premises at Ferryden Park. She said the scales were found within one of the bedrooms of the premises and submitted (from the bar table) that this bedroom belonged to the principal resident of the premises who was not the defendant. Therefore on Ms Stephens’ argument an inference would arise that the scales belonged to that person as the principal occupant of that bedroom. She also submitted and it was not put in contest, that the scales were analysed and no drugs were detected upon the scales.
However, it seems to me that it is not appropriate in the circumstances that I isolate a piece of evidence in the way in which Ms Stephens has indicated. For example, there is evidence of some form of cohabitation between a female person living at the Ferryden Park address called Lisa (and the person Lisa is the lessee or owner of the premises) and the defendant. It follows that it would not necessarily be surprising or unusual for scales to be found in a bedroom of that house. It remains to be seen whether I may be satisfied that this was a bedroom shared by the defendant and the other female person. That is a matter that will need to be explored in the further evidence to be led at trial and would not be a matter that would lead to me excluding that evidence in this application.
Ms Stephens also strenuously objected to a number of the text messages. I have already excluded one, namely no.16, however, she submitted that I must be satisfied of the relevance of each of the texts and I must also be satisfied that each is more probative than prejudicial. I must be satisfied that the texts have a strong probative value having regard to the issues. Ms Stephens identified a number of those texts and I refer in particular to nos.1, 14, 15, 17, 18, 19, 20-25. Ms Stephens submitted that essentially third party text messages are not relevant.
At this juncture and notwithstanding that I acknowledge the individual strength of some of the points made by Ms Stephens, I am unable to accept that submission. It has been clear from the outset that the approach of the Director is to lead an inference case and it will be necessary ultimately to draw strands together from all of the evidence led by and on behalf of the Director in this case. It is then a matter of further consideration and judgment by me about whether (or not) the Director has proved that case against the defendant beyond reasonable doubt. That is not the question for my consideration here and I am required to keep that distinction clearly in mind in my deliberations on this issue. In my opinion, there is a real and obvious strength in considering the evidence available within the text messages in the phone as a whole and to take the approach that it is the assessment of the strength of the case of the Director after the combination of those strands of evidence that will occur here.

In those circumstances and in the knowledge that expert evidence will also be called by the Director concerning the content of the particular text messages, it would be premature now and not in accordance with the application of settled principles to point to a particular message and say that standing alone or in concert with any other message, that it does not meet the criteria for s.34P.
In my view, the approach as outlined by Vanstone J in Soteriou at para.[15] is pertinent. Her Honour there identified and emphasised the relevant types of messages and notes and the words within them and said as follows:-
“[15] The notebooks and text messages stand differently. The text messages clearly speak of sales and payments. The subject matter of what is being traded is sometimes referred to as “biscuits” and other times as “green e’s”. However, viewing the various strands of the prosecution case cumulatively, the messages were clearly capable of demonstrating that the defendant had, in the past, sold drugs. Therefore the terms of s 34P were engaged.”
Further in the judgment at para.[21] her Honour dismissed the distinction between reliance on the continuing interest in the drug trade as against the propensity to trade in drugs and this is the approach taken by the Director in this matter.
At para.[31] in Soteriou, Vanstone J said as follows:-
“[31] In the present case, the evidence of the appellant apparently conducting the business of trafficking in drugs from the very premises where he was found and near to where the drugs were located, was evidence of an interest in the trade and of his inclination or propensity to possess drugs for that purpose.
Although the relevant material facts in this matter are different from those in the Soteriou case, in my opinion that difference is not a proper point of distinction in respect of the exercise that I am undertaking here. In my view, to the extent that the decision is applicable, the Court of Criminal Appeal in Soteriou has established a number of guidelines and principles in the application of s34P Evidence Act 1929 that I will apply and follow in reaching my decision in this matter.
In my view, having read all of that material and having heard the submissions of counsel, I am satisfied that the probative value of this evidence as submitted by the prosecution may be described as having strong probative value having regard to the particular issues at trial. I am therefore satisfied that the requirement of s.34P(2) can be satisfied. The evidence emanates from a phone that contains messages addressed to a “Brett”, the Christian name of the defendant. The SIM card of the phone is registered to the defendant as the subscriber. The memory card of the phone contains photos and sexually explicit material that involves the defendant. The messages in the texts contain what may be described as many of the usual euphemisms employed by those involved in dealing (selling and buying) drugs in the community. Those euphemisms are employed in diverse ways and methods within those incoming and outgoing communications. All of this material viewed either separately or together has strong probative force.
I am satisfied as well that I am able to deal with any prejudicial effect of that evidence because I am able to direct myself concerning any impermissible use as may be required to be considered for s.34P(3) of the Evidence Act. In so deciding, I am also satisfied that I can keep separate any impermissible use as distinct from the permissible use. I am satisfied that I can direct myself about any evidence being used for that purpose, consistent with my satisfaction that the evidence has strong probative value for the purposes of s.34P(2)(b) of the Evidence Act. I am satisfied that as I am presently advised, there would be no reason to exclude the evidence as an exercise of discretion apart from para.16 of the texts set out on p.3 of the table annexed to the outline of argument prepared by the prosecution.
I have excluded that text message because it is a communication between the relevant carrier and the defendant concerning his SIM card. It is not now in contest that the defendant is the registered owner of the SIM card that was purchased in his name. The contention of Ms Stephens for the defendant is that, a reasonable hypothesis arises that the information stored on the phone was connected to another person or the phone was connected to another person or persons, and especially the person or persons in control of the house at Ferryden Park in which the phone appears to have been located. It will be necessary to deal with that contention on the whole of the evidence and it is not appropriate that I deal with that matter here.
To the extent relevant, I will also be able to direct myself in accordance with the requirements of s34R of the Evidence Act.
Therefore I am unable to accept the challenge made to the evidence sought to be led by the Director and identified in the s.34P notice, apart from the exclusions that I have identified.