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…

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 JEISMAN (No 2)

Details

AGLC: R v JEISMAN (No 2) [2014] SADC 15
Case: [2014] SADC 15
Decision Date: 14 January 2014

CaseChat Overview and Summary

The case of R v Jeisman (No 2) involves the Director of Public Prosecutions seeking to adduce evidence of discreditable conduct of the accused in a criminal trial. The dispute encompasses both uncharged and charged acts of possession of items, as well as charged and uncharged acts of trafficking and interactions with drug users, buyers, and/or dealers. The prosecution's intention to lead this evidence includes an intention concerning propensity evidence. The primary legal issue before the court was whether the probative value of this evidence substantially outweighed any prejudicial effect it might have on the trial.

The court considered the principles governing the admissibility of propensity evidence and noted that such evidence can be highly prejudicial if not carefully controlled. The court was required to determine if the prosecution's intention to use this evidence was justified and if appropriate directions could be given to ensure it would not unfairly prejudice the accused. The court concluded that while the evidence might have probative value, it was crucial that the jury was properly directed to avoid drawing any impermissible conclusions from it. The court held that the evidence could be admitted, provided that the jury was given explicit directions to exclude any propensity reasoning.

In its reasoning, the court emphasised the need for a careful balance between allowing relevant evidence and protecting the rights of the accused. The court found that, with proper directions, the probative value of the evidence could be preserved without causing undue prejudice. Consequently, the court allowed the evidence to be adduced, subject to the condition that the jury be appropriately instructed regarding its permissible use. The court's decision ensures that the trial proceeds fairly, with the integrity of the evidence being upheld through judicial oversight.

The final orders of the court were that the prosecution could adduce the evidence in question, provided that appropriate directions were given to the jury. The court emphasised that the evidence was to be considered solely for its relevance to the facts of the case and not for any propensity reasoning. The trial proceeded with these conditions in place, ensuring that the accused's rights were protected while still allowing the prosecution to present a robust case.

Orders