R v Nguyen
[2018] SADC 10
•26 February 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NGUYEN
[2018] SADC 10
Ruling of Her Honour Judge Chapman
26 February 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE
Accused charged with three counts of Trafficking in a Controlled Drug - the heroin the subject of one count was found by police in the course of searching a motor vehicle at the roadside - whether the driver was lawfully directed to stop pursuant to s 40H of the Road Traffic Act 1961 (SA) - held that a lawful direction was given to stop the vehicle and the subsequent search was lawful.
Vehicle seized by police to conduct a further search - mistaken belief as to source of legal authority to seize - held seizure and subsequent search of the vehicle was lawful.
Police used keys seized from vehicle to gain access to premises to search - whether in breach of common law requirement to preserve seized items for trial - held the use of the keys was lawful.
Road Traffic Act, 1961 s 40H; Motor Vehicles Act, 1959 s 96; Controlled substances Act, 1984 s 52(9), referred to.
R v Neal (2017) 128 SASR 20, applied.
Bartlett v Weir & Ors (1994) 72 A Crim R 511, distinguished.
R v Sincovich (1994) 175 LSJS 130; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; The Queen v Romeo (1982) 30 SASR 243; Warke v Daire (1983) 32 SASR 321; R v Long and McDonnell (2002) 137 A Crim R 263, considered.
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY
Admissibility of discreditable conduct - conviction for trafficking in drugs about 3½ years prior to charged offending - held the discreditable conduct does not have the required strong probative value.
Evidence Act, 1929 s 34P, referred to.
R v Long and McDonnell (2002) 137 A Crim R 263; R v Pringle [2017] SASCFC 9, considered.
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT
Three counts of Trafficking in a Controlled Drug and two counts of Unlawful Possession of cash - properly joined - whether separate trial should be ordered for the counts of Unlawful Possession - held no separate trial ordered.
Criminal Law Consolidation Act, 1935 s 278, referred to.
R v Perfili (2006) 95 SASR 560, distinguished.
R v NGUYEN
[2018] SADC 10
The accused made application pursuant to Rule 49(1)(e) of the District Court Criminal Rules for severance of counts and applications pursuant to Rule 49(1)(h) for exclusion of evidence to be led at her trial. On 30 January 2018, I made rulings in regard to those applications. The following are my reasons for those rulings.
The accused is charged on Information with three counts of Trafficking in a Controlled Drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (‘the CSA’). Those charges concern heroin found in a Toyota sedan (‘the vehicle’) stopped and searched by police at Ottoway on 3 April 2016 and then further searched on 4 April 2016 after having been seized.
She is also charged with two counts of Unlawful Possession contrary to s 41(1) of the Summary Offences Act 1953 (SA). Those two counts concern cash located at the accused’s premises at Ottoway on 3 April 2016.
Discreditable Conduct
The prosecution filed a Notice of Intention to Adduce Discreditable Conduct Evidence pursuant to s 34P(4) of the Evidence Act 1929 (SA). The discreditable conduct sought to be adduced was the plea of guilty by the accused on 22 August 2016 to Trafficking in a Controlled Drug at Findon on 31 October 2012 and the facts surrounding that plea.
Rule 49 Applications
The accused made application pursuant to Rule 49(1)(e) for evidence to be excluded as follows:-
(1)Evidence of the accused’s prior conviction for Trafficking in a Controlled Drug and the material found on searches on 31 October 2012 relating to that conviction;
(2)Evidence obtained from the searches of the vehicle after it was stopped at Ottoway on 3 April 2016;
(3)Evidence obtained from the subsequent search of the vehicle at the Ottoway police compound on 4 April 2016; and
(4)Evidence obtained as a result of the search of the accused’s residential address.
The accused also made application pursuant to s 49(1)(h) for severance of the two counts of Unlawful Possession, being counts 4 and 5.
Facts
On the voir dire, the following facts were not in dispute.
On 3 April 2016, Detective Brevet Sergeant Winterfield was on duty with Detective Sergeant McCoy conducting observations on premises occupied by the accused at 20 Rosewater Terrace, Ottoway (‘the Rosewater premises’). The police had information which suggested dealing of illicit drugs from those premises.
At about 1.50pm, the garage roller door raised and the vehicle reversed out of the driveway. The vehicle turned left from Rosewater Terrace onto Grand Junction Road and then right onto Hanson Road. Detectives Winterfield and McCoy followed in their unmarked vehicle. There was nothing remarkable about the vehicle or the manner of driving.
When the vehicle turned left on to Sixth Avenue, the manner of driving changed. The vehicle rapidly accelerated after turning a corner followed by late and heavy braking just prior to turning the next corner. That manner of driving continued as the vehicle turned right from Sixth Avenue into Fifth Avenue then left onto Humphries Avenue then right onto Holdings Avenue. The route was also such that the vehicle was effectively turning back on itself, almost completing a loop.
Detective Winterfield activated the emergency lights and the vehicle stopped on Holdings Avenue. He approached the driver’s door and asked the driver for his licence. The driver, Mr Thiep Long Tri, produced his licence. There were no other persons in the vehicle.
Detective Winterfield made observations of Mr Tri and the interior of the vehicle. As a result of those observations, he asked Mr Tri to exit the vehicle which Detective McCoy then searched. A small duct tape package, an ice pipe and a small bag containing a crystalline substance were located underneath the plastic cover of the centre console area. Inside the small duct tape package was 13.9g of rock material that contained 2.61g of heroin, which is the subject of count 1. Inside the small bag was 0.85g of crystals containing methylamphetamine.
Mr Tri was arrested. The vehicle was seized and towed to the police compound at Ottoway.
Detective Winterfield briefed Detective Kylee Von Ohle to search the Rosewater premises, providing her with a set of keys and a remote control found inside the vehicle.
Detective Von Ohle attended at that address with other officers. The remote control operated the roller door. She knocked on the side door and then entered using a key from the set of keys obtained from the vehicle to open the door. The accused was present with two other occupants. The police located digital scales, a number of empty plastic resealable bags and cash. Count 4 concerns cash in the sum of $8,455. Of that, $6,205 was located in a cabinet drawer in the lounge area (comprising $5,600 in the drawer, $60 in a box and $545 in a purse) and $2,250 was located in the main bedroom in the front right pocket of a pair of men’s jeans. Count 5 concerns $3,540 cash located in the rear bedroom in a box.
On 4 April 2016, the police further searched the vehicle at the police compound at Ottoway. During the search of the rear passenger side wheel arch of the vehicle, two plastic containers dropped to the ground from what appeared to be a concealed compartment. Inside one plastic container were two small duct tape packages inside which were 27.9g and 14g of rock material containing 5.13g and 2.55g of heroin respectively (count 2). Inside the other plastic container were three small duct tape packages inside which were 14g, 14g and 13.9g of rock material each containing 2.55g, 2.56g and 2.56g of heroin respectively and a fourth plastic wrapped package inside which was 0.94g of rock material containing heroin (count 3).
Search of the vehicle on Holdings Avenue, Ottoway
The accused applied to exclude the evidence of the search of the vehicle which was conducted by Detective McCoy on instruction from Detective Winterfield soon after the vehicle was stopped on Holdings Avenue. The illegality giving rise to a discretion to exclude the evidence was said to be an unlawful stopping of the vehicle by Detective Winterfield pursuant to s 40H of the Road Traffic Act 1961 (SA) (‘the RTA’) which is as follows:
40H—Direction to stop vehicle to enable exercise of other powers
(1) An authorised officer may, for the purpose of or in connection with exercising other powers under a road law, direct—
(a)the driver of a vehicle to stop the vehicle; or
(b). . .
…
(5) A person commits an offence if
(a)the person is subject to a direction under subsection (1); and
(b)the person engages in conduct that results in a contravention of the direction.
(6) In this section
Stop a vehicle means to stop the vehicle and keep it stationary.
Mr Redmond made the submission that in order for a direction to be lawful pursuant to s 40H of the RTA, the police officer must have in mind the relevant ‘power’ under a road law at the time of giving the direction. He submitted that after Detective Winterfield had stopped the vehicle, he exercised the ‘power’ to request a driver’s licence pursuant to s 96 of the Motor Vehicles Act 1959 (SA) (‘the MVA’). He did not have that power in his mind to exercise when he directed the vehicle to stop. He did not form the intention to request production of the licence until after he had directed the vehicle to stop. Consequently, it was submitted there was non‑compliance with s 40H of the RTA.
Mr Redmond did not dispute that the decision in R v Neal[1] is binding authority to the effect that the word ‘power’ in s 40H(1) extends more generally to a legal ability, capacity or authority and includes the legal capacity of a person to unilaterally impose a duty on another by acting in accordance with his or her statutory authority, such as s 96 of the RTA. Accordingly, a direction that a driver stop their vehicle pursuant to s 40H of the RTA for the purpose of conducting a licence check pursuant to s 96 of the MVA imposes a duty on the driver to stop the vehicle he or she is driving[2].
[1] (2017) 128 SASR 20
[2] R v Neal at [40]
Mr Redmond’s point was that conducting a licence check was not in Detective Winterfield’s mind when he directed the driver to stop.
Detective Winterfield gave evidence on the voir dire on the topic of directing the vehicle to stop as follows:
QIn relation to stopping the vehicle, can you tell me why it was that you stopped the vehicle at the time that you did.
ACertainly. I was – the manner that it had driven and the route that it had taken was of great interest to me. I was – I wasn’t aware whether the driver was committing road traffic offences, I wasn’t able to, you know, get an accurate speed on how the vehicle was driving. I was interested as to why the vehicle was driving how it was in the manner that it had gone so for that reason I have stopped the vehicle.
In cross-examination, he gave further evidence:
QYou identified Mr Tri after he produced his driver’s licence.
AThat is correct.
QYou requested him to do that after you didn’t recognise him having pulled him over, is that right.
AI have requested him to ascertain who he was, I did not recognise him at the time that he was pulled over.
QWhen did you form the intention to ask for his driver’s licence.
AI have asked for his driver’s licence as a means of identifying him. As I have approached the vehicle, so the first conversation I have had is with regards to the driver’s licence.
QSo you have only decided to ask for his driver’s licence after you have stopped him.
ACertainly.
QWhen you stopped him you said that you weren’t sure if he had been committing any road traffic offences.
AThat is correct.
QSo what power did you use to stop him.
ACertainly I’m aware that police have a very broad authority to be able to stop vehicles to ascertain the identity of drivers under the Road Traffic Act, the manner of driving is one of the things that came to my attention so I have stopped him to – whilst stopped the vehicle to speak to the driver.
QWhat gives you the power to do that.
AI believe it is the Road Traffic Act and I would be guessing as to the exact one, I am aware that I can do it but I am not very good at quoting on all the sections.
I accept that on a strict reading of Detective Winterfield’s evidence, he did not form the intention to request the driver to produce their licence until after he had activated his emergency lights. Such an intention was formed by him shortly after the vehicle stopped and before approaching the vehicle.
However, even though Detective Winterfield did not decide to request production of the licence until just after the vehicle stopped, his evidence was that it was the manner of driving and the need to identify the driver which led him to direct the vehicle to stop. During cross‑examination, Detective Winterfield was shown s 40V of the RTA and said that appeared to be the section he had in mind when he decided to direct the vehicle to stop. He was challenged on that on the basis that after stopping the vehicle, he did not in fact direct the driver to give personal details pursuant to s 40V(2). He responded to the effect that by then he had decided to request a driver’s licence as a means of helping to identify the driver.
Section 40V of the RTA provides:
40V—Direction to give name and other personal details
(1) In this section—
personal details, in relation to a person, means—
(a) the person's full name; and
(b) the person's date of birth; and
(c) the address of where the person is living; and
(d) the address of where the person usually lives; and
(e) the person's business address.
(2) If an authorised officer suspects on reasonable grounds that a natural person whose personal details are unknown to the officer—
(a)…
(b)has committed or is committing or is about to commit an Australian road law offence; or
(c)…
(d)…
the officer may direct the person to give the officer then and there any or all of the person's personal details.
…
(4)A person commits an offence if—
(a) the person is subject to a direction under subsection (2) or (3); and
(b) the person—
(i) engages in conduct that results in a contravention of the direction; or
(ii) gives any detail that is false or misleading in a material particular in purported response to the direction; or
(iii) produces any evidence that is false or misleading in a material particular in purported response to the direction.
Maximum penalty: $5 000.
I find that the effect of Detective Winterfield’s evidence was that he had in mind s 40V of the RTA when he activated the emergency lights, but then decided to proceed pursuant to s 96 of the MVA as he was approaching the driver’s door. I accept his evidence on that topic. He always had in mind the need to identify the driver. Based on his evidence about the observed manner of driving and his lack of knowledge as to the identity of the driver, he would have been authorised to direct the driver to provide their personal details pursuant to s 40V(2)(b).
A request made pursuant to s 40V(2)(b) of the RTA is an exercise by a police officer of a legal authority which imposes a duty on a person to provide those personal details. Like s 96 of the MVA, and in accordance with the authority of R v Neal, I consider it falls within the meaning of the word ‘power’ in s 40H(1) of the RTA.
Applying Mr Redmond’s own submission of a need for a coincidence in the mind of the police officer of the relevant ‘power’ under a road law and the giving of the direction to stop, I find there was such a coincidence. Detective Winterfield had in mind matters consistent with s 40V(2)(b) when he activated his emergency lights.
I therefore find that the direction made by Detective Winterfield to stop the vehicle was authorised and imposed a duty on the driver to stop. There was no illegality.
If I am wrong about that and Detective Winterfield acted without authority in stopping the vehicle, it is arguable that Mr Tri was detained unlawfully[3]. I would nevertheless decline to exercise my discretion to exclude the evidence of the search. Mr Redmond conceded that the intention to conduct a licence check pursuant to s 96 of the MVA was formed shortly after stopping the vehicle and had it been formed some 30 seconds earlier, the unlawfulness would not have arisen. Mr Redmond did not concede that any illegality here was short lived, but did describe it as technical.
[3] R v Neal at [42]
Furthermore, Mr Redmond conceded that events that transpired after the vehicle was stopped and before the vehicle was searched were such that Detective Winterfield formed a reasonable suspicion sufficient to lawfully search the vehicle pursuant to s 52(9) of the CSA.
Detective Winterfield gave evidence that when he stopped the vehicle he did not have a suspicion sufficient for a search, but formed that suspicion soon after he identified the driver as Mr Thiep Long Tri. The suspicion arose from a combination of factors. They were the fact the vehicle left the Rosewater premises where the trading of drugs was suspected; the erratic manner in which the vehicle was driven and the illogical path it followed once it left Hanson Road; the demeanour of Mr Tri who appeared nervous with shaking hands and sweat on his face; Detective Winterfield’s observations of the centre console being visibly out of position in the car; and the knowledge that Detective Winterfield had of Mr Tri’s long standing involvement in drug trafficking, including as recently as 22 or 23 March 2016 as well as a prior occasion when Mr Tri had secreted items in a centre console of a vehicle.
Detective Winterfield gave careful and considered evidence regarding the formation of his reasonable suspicion to search the vehicle, which was not challenged and which I accept. I find that if any unlawful detention occurred, it was momentary, not of a deliberate nature and ‘technical’. The cogency and reliability of the evidence located during the search is not affected by any unlawfulness.
Search of the vehicle on 4 April 2016 at Ottoway police compound
Detective Winterfield gave evidence that after the search of the vehicle at the roadside, he used his common law power to seize the vehicle. He considered the vehicle to be ‘part of evidence’ and he had yet to complete the search of it.
Mr Redmond submitted the seizure of the vehicle for the purpose of a later search was unlawful because at common law the seizure could only be for the limited purpose of preserving and retaining that property until any trial was concluded[4]. Seizing the car for a subsequent search was said to be an exercise of the power for an improper purpose[5].
[4] R v Sincovich (1994) 175 LSJS 130 at 131
[5] Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281
Reliance was placed upon the decision in Bartlett v Weir & Ors[6] where it was held that the seizure of computer hardware to enable the production of evidence when examined at a later time was unlawful. That case can be distinguished from the facts here. In Bartlett, the officers were executing a warrant which permitted seizure of things ‘which will provide evidence of an offence’. The illegality arose because the officers had not turned their minds at all to whether the items seized would afford evidence of the commission of an offence. Here, Detective Winerfield did turn his mind to such matters. He gave evidence that based on where the duct tape package was located (hidden under the centre console), he was of the opinion that a more thorough search of the vehicle needed to be conducted at a later time because other items may have been secreted.
[6] (1994) 72 A Crim R 511
Regardless of whether Detective Winterfield had the power at common law to seize and further search the vehicle, I find that he did have such power pursuant to s 52(9) of the Controlled Substances Act 1984 (SA) which is as follows:
52—Power to search, seize etc.
(9) If an authorised officer who is a police officer reasonably suspects that any substance or equipment that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may—
(a)require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and
(b)detain and search the vehicle, vessel or aircraft; and
(c)seize and remove from the vehicle, vessel or aircraft anything that the officer reasonably suspects would afford evidence of an offence against this Act.
Mr Redmond conceded that prior to the initial search of the vehicle at the roadside, Detective Winterfield formed a reasonable suspicion pursuant to s 52(9) that any substance or equipment that would afford evidence of an offence against the Act was in the vehicle. It follows that Detective Winterfield had the power to detain and search the vehicle at the roadside pursuant to s 52(9)(b), which he did.
Having lawfully searched the vehicle, he then seized it in order to conduct a more thorough search. I find that he had power to do so pursuant to s52(9)(c).
Although the terms of s 52(9)(c) do not contain a specific reference to a search of the vehicle once seized, that must be implied. A police officer who reasonably suspects any substance or equipment that would afford evidence of an offence against the CSA is in any vehicle has the power pursuant to s 52(9)(c) to not only seize that vehicle, but remove certain items from it. A police officer is not required to have searched the vehicle pursuant to s52(9)(b) before seizing it pursuant to s 52(9)(c). What is required before exercising the power of seizure is a reasonable suspicion about what may be in the vehicle. Given s 52(9)(c) includes the power to remove items from the seized vehicle and is not dependent upon a prior search, it necessarily follows that a search after the seizure of the vehicle is contemplated by the terms of s 52(9)(c).
The fact that Detective Winterfield had caused there to be a relatively cursory search of the vehicle at the roadside pursuant to s 52(9)(b) did not preclude him from exercising the power to then seize the vehicle, search it and subsequently remove further items pursuant to s 52(9)(c). In order to seize the vehicle pursuant to s 52(9)(c) after searching the vehicle pursuant to s 52(9)(b), it was necessary that he then had the necessary suspicion which is a precondition to the exercise of the power.
Detective Winterfield gave evidence that after becoming aware at the roadside that a duct tape package had been secreted under the centre console inside the vehicle, he suspected that a more thorough search of the vehicle may reveal more secreted items. I find that was a reasonable suspicion which empowered him pursuant to s 52(9)(c) of the CSA to seize the vehicle, conduct a further search of the vehicle at the Ottoway police compound and remove items from the vehicle that he reasonably suspected would afford evidence of an offence against the CSA. That is what he did.
Even if Detective Winterfield was mistaken about the common law being his source of power, that would not invalidate his seizure and further search of the vehicle in this case. As a matter of general principle, acts of a police officer would not be invalidated merely because that officer had a wrong view about the proper source of their legal authority[7]. I apply that principle in this case having found that Detective Winterfield in fact held the relevant reasonable suspicion which empowered him to act pursuant to s 52(9)(c) of the CSA.
[7] he Queen v Romeo (1982) 30 SASR 243 at 277; Warke v Daire (1983) 32 SASR 321 at 327 – 328; R v Long and McDonnell [2002] SASC 426; (2002) 137 A Crim R 263 at [31].
Mr Redmond submitted that if there was power to seize the vehicle for the purpose of searching the vehicle, then the power would need to be exercised forthwith. The search could not wait until the officer next had an opportunity to search in accordance with the convenience of his schedule. I find no support for that general submission in s 52(9)(c) and in any event, a search of the vehicle the next day, which occurred here, was not an unreasonable time frame.
If I am wrong about the lawfulness of the seizure of the vehicle for a subsequent further search, I would not exercise my discretion to exclude the evidence for the following reasons. If the vehicle had been thoroughly searched at the roadside (for which Mr Redmond conceded Detective Winterfield held a reasonable suspicion), the two further packages would have been discovered. The accused’s civil liberties were not infringed by any unlawfulness. She was not driving or in the vehicle. Any infringement of Mr Tri’s civil liberties as a result of the car being unlawfully seized following the discovery of the secreted package in the centre console was negligible because he had been lawfully arrested. There was no suggestion that the delay in searching the vehicle affected the cogency or reliability of the discovery of the further two containers on 4 April 2016 which was evidence of serious offending.
Search of premises at 20 Rosewater Terrace, Ottoway
The accused applied for the exclusion of evidence obtained during the search of the Rosewater premises on the basis that (1) the unlawful search of the vehicle at the roadside taints the subsequent search of the house and (2) the premises were ‘entered through the unlawful utilisation of keys seized from the co-accused’.
I have found against the accused in regard to (1).
In regard to (2), Detective Winterfield gave evidence he took keys from the vehicle and gave them to Detective Von Ohle to assist in gaining entry to the Rosewater premises for the purpose of conducting a search. Detective Von Ohle gave evidence she was given a bunch of keys and a roller door remote from Detective Winterfield. She conducted the search of the Rosewater premises under the authority of her general search warrant. The roller door remote control operated the garage roller door at the Rosewater premises. When there was no answer to her knock on the sliding door at the side of the house, she used one of the keys to open that door and gain entry.
Mr Redmond submitted that the keys had to be preserved for trial and it was unlawful to use them as a further investigative tool. He relied upon the decision in R v Sincovich[8]. That case can be readily distinguished. It involved the destruction of cannabis prior to trial which was in breach of the common law requirement that seized items be preserved for trial. Here, there was no evidence that the keys were destroyed prior to trial. In my view, the police were entitled to conduct further investigations using those keys. They were entitled to test the keys taken from the vehicle to see if any of them would open doors at the Rosewater premises. That might lead to important evidence to connect the vehicle and Mr Tri to the Rosewater premises and the accused. The use of the keys did not in any way compromise their preservation for trial.
[8] (1994) 175 LSJS 131
I find there was no illegality in the police using the keys in the way they did here. I agree with Mr Redmond’s submission that if there was illegality arising only from (2), then that would not be a sufficient basis for an exercise of the discretion to exclude the evidence of the search at the house.
Discreditable conduct – Trafficking in a Controlled Drug in 2012
On 22 August 2016, the accused pleaded guilty to one count of Trafficking in a Controlled Drug, namely, heroin. The offence date was 31 October 2012. The plea related to packages of heroin located at her premises at Findon (the 2012 evidence). One package was secreted in a pair of boots. It was wrapped in duct tape, had two layers of plastic and weighed 3.46g. Another package was secreted in a PVC pipe in the back yard. It was wrapped in duct tape, had three layers of plastic and weighed 28g. Another package secreted in that PVC pipe was wrapped in duct tape, a layer of plastic, then three separate layers of plastic covering each of the four lots of heroin, weighing 14.1g then 14g, 14g, and 14g. The plastic wrapping appeared to be parts of freezer bags.
The prosecution sought to rely upon the fact those packages were secreted, the manner of packaging and the weight and analysis of the packages of heroin to demonstrate that the accused was in the business of dealing drugs, had a tendency or propensity to possess drugs for sale, knew how to package and hide heroin for sale and had a tendency or propensity to hide drugs that were to be sold. The prosecution submitted that the 2012 evidence made it more likely that she was involved in counts 1, 2 and 3, namely, that she was in possession of the heroin in the vehicle and taking part in the sale of the drugs, that her intention was to sell the drugs and that any innocent explanation for the evidence can be rejected.
It was said that the 2012 evidence made it more likely that she was involved in counts 4 and 5, namely, she was in possession of the cash, that the cash was the proceeds of previous drug sales or obtained as part of her drug selling enterprise and that any innocent explanation for the evidence can be rejected.
The prosecution sought to have the 2012 evidence admitted for that particular propensity or disposition use as circumstantial evidence of a fact in issue. The fact in issue for each count was said to be possession of the heroin or the cash by the accused.
The 2012 evidence is evidence of discreditable conduct. Section 34P(2)(b) of the Evidence Act 1929 (SA) requires the prosecution to establish the 2012 evidence has strong probative value having regard to the particular issue at trial. The prosecution did not submit the evidence was admissible for a purpose pursuant to s 34P(2)(a).
I am not satisfied the evidence has the necessary strong probative value for admissibility pursuant to s 34P(2)(b).
There is a period of three and a half years between the 2012 offending and these allegations in 2016. That is a much lengthier period than the period considered, for example, in R v Long & McDonnell[9] and in R v Pringle[10]. Whilst that may not necessarily be determinative in some cases, the period of time here is significantly lengthy and without more, deprives the evidence of strong probative value. The evidence does not build a picture of a woman involved in the heroin trade on an ongoing basis. It is insufficient to establish that as at 2016 she was in the business of dealing drugs or had a tendency or propensity to possess drugs for sale.
[9] [2002] SASC 426; (2002) 137 A Crim R 263
[10] [2017] SASCFC 9
Mr Allen submitted that whilst it was very common for heroin to be wrapped in duct tape, here the levels of plastic wrapping inside the duct tape in both 2012 and 2016 was a remarkable coincidence. In my view, the affidavit of Detective Brevet Sergeant Nguyen, dated 25 January 2018, does not support that submission. Mr Allen conceded as much. Detective Nguyen expressed the opinion that heroin packaged in ‘bundles’ in this way was one of many methods of packaging of heroin of which he is aware. Furthermore, there was nothing remarkable about the weight of heroin, being 28g or 14g. Mr Allen did not seek to supplement the opinion evidence on the voir dire.
In light of the above, I find that the 2012 evidence does not establish a propensity of strong probative value in relation to the issue of possession in each count and is not admissible pursuant to s34P(2). The application by the accused to exclude that evidence is granted.
Further applications
In light of my ruling to exclude the evidence of discreditable conduct in 2012, the applications by the accused to exclude the evidence of police as to similarities between the packaging of drugs in 2012 and 2016 and evidence of police as to the accused’s place of residence in 2012 and 2016 fall away.
Severance of Counts 4 & 5
Mr Redmond submitted that the five counts were properly joined on the single Information pursuant to s 278(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’), but that counts 4 and 5 should be tried separately in the exercise of the discretion pursuant s 278(2) of the CLCA which is as follows:
Where before trial, or at any stage of a trial, the court is of the opinion that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information or that, for any other reason, it is desirable to direct that an accused person should be tried separately for any one or more offences charged in an information, the court may order a separate trial of any count or counts of the information.
Mr Redmond submitted the accused was prejudiced in her defence because of what he described as the ‘low threshold’ of proof as well as the reverse onus of proof in regard to counts 4 and 5. The latter was said to deprive the accused of her right not to give evidence in relation to counts 1, 2 and 3. Mr Redmond relied upon the decision in R v Perfili[11].
[11] (2006) 95 SASR 560
Both counsel agreed that the issue in this case for all five counts is that of possession. The prosecution must prove that element for each offence beyond reasonable doubt. There is no reverse onus in regard to the elements of the offence.
Further, this case is to be distinguished from the position in R v Perfili because if the prosecution proves possession in this case of the drugs and/or cash, then the accused has a reverse onus in regard to all, as opposed to some, of the counts on the Information. If the prosecution proves the accused was in possession of a trafficable amount of heroin for counts 1‑3, then the prosecution benefits from the presumption in s 32(5) of the CSA in proving intention to sell. The accused may rebut that presumption if she establishes on the balance of probabilities that she did not have the drug in her possession for the purpose of sale. For counts 4 and 5, if the prosecution proves possession of the cash and the relevant reasonable suspicion, then the offence is proved unless the accused can prove on the balance of probabilities that she obtained possession of the cash honestly.
The existence of a reverse onus for all counts on the Information removes that particular suggestion by the accused of unfairness arising from a single trial.
There remains the prejudice arising from the admission of evidence of suspicion upon counts 4 and 5 which is not admissible in respect of counts 1, 2 and 3. Such prejudice does not arise with the same force when there is to be a trial by judge alone. The evidence of suspicion will be admitted for a strictly limited purpose in connection with counts 4 and 5 only. I am satisfied that any prejudice arising from that evidence will be removed in this trial. It will not be taken into consideration in regard to counts 1, 2 and 3. Also, taking into account the cost and inconvenience of separate trials, I decline to exercise my discretion to sever counts 4 and 5.
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