R v Prasad

[2015] NSWDC 344

District Court

New South Wales

Medium Neutral Citation:	R v PRASAD [2015] NSWDC 344
Hearing dates:	22, 23/09/2015
Decision date:	23 September 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Oral admissions and text messages objected to not admitted.
Catchwords:	Criminal - Evidence, admissions, admissibility of evidence of criminal conduct not charged.
Legislation Cited:	Evidence Act 1995
Cases Cited:	Harriman v The Queen (1989) 167 CLR 590 R v Quach [2002] NSW CCA 519 R v Mostyn [2004] NSW CCA 97
Category:	Consequential orders (other than Costs)
Parties:	Crown Ajeev Krishan Prasad - Accused
Representation:	Counsel: Mr Rowling – Crown Mr Munro - Accused   Solicitors: Director of Public Prosecutions – Crown O’Brien Solicitors - Accused
File Number(s):	2014/00037708

Judgment

Application to exclude evidence; see transcript p 5,6

1. HIS HONOUR: The accused, Ajeev Krishan Prasad is to be arraigned on a charge alleging that he supplied a prohibited drug namely methylamphetamine on 5 February 2014. The charge arises from the circumstances of a stop and search by police, particularly Senior Constable Janhke at 6.48pm on 5 February 2015 in Old South Head Road, Bellevue Hill.

2. Objection is taken by the accused to the admissibility of particular text messages received on his mobile phone over several days up until his arrest and part of the conversations had by the accused with the arresting police.

3. I do not propose to go through in chapter and verse the detail of the Crown case, but to summarise the situation as succinctly as I can, being under some pressure of time, as I understand the Crown case a car driven by the accused in which was also present Chee Hong, sitting in the passenger seat, was stopped for a random breath test and some inquiries to some defect in the car. A subsequent search of the car and the passenger has revealed Mr Hong to be in possession of a large sum of money, and to be in possession of, or appearing to have some immediate control over, a quantity of methylamphetamine which is the subject matter of the charge against the accused.

4. The total quantity of methylamphetamine found in separate places, including in an area within the rear passenger door, as I understand it is something in the order of 16.8 grams. It is important to note that it is that methylamphetamine as identified by the learned Crown Prosecutor in his opening remarks, found within the car either in the possession of Mr Hong or purportedly under his immediate control, which is the relevant methylamphetamine for which the accused has been charged with supplying.

5. In relation to this matter, the Crown case against the accused, Mr Prasad, is that he was involved in a joint criminal enterprise to supply the prohibited drug. As I would understand the Crown case, although I have not gone into the detail of the legal basis for the Crown's case against the accused.

6. Whilst it may appear ostensibly on the evidence that Mr Hong had the relevant drugs in his possession, all the circumstances of the matter point to what the Crown would allege to be either joint possession by the two men, or possession by Mr Hong for the purposes of furthering a joint criminal enterprise between Mr Hong and Mr Prasad to supply the prohibited drug.

7. Although the matter has not been specified in the indictment particularly, it may turn out that the way in which the case would be left to the jury is a case for joint criminal enterprise in respect of possession of a quantity of the prohibited drug deemed to be in the possession of the men for the purposes of supply. Be that as it may, the resolution to the matters with which I am concerned does not turn upon the specific way in which the Crown would prove "supply", beyond noting, as I've said earlier, the existence in the Crown case of a joint criminal enterprise or a case of joint possession.

8. Yesterday I was provided with a bundle of documents and other material I heard oral evidence on the voir dire from Senior Constable Janhke. He specifically gave oral evidence in relation to the circumstances of the questioning of the accused and particularly the circumstances in which it came to pass ultimately that cautions were administered to the accused in respect of the alleged separate offences after events which are submitted to be on the evidence giving rise to a reasonable belief that the accused had committed an offence warranting the administration of a caution to the accused, that is a warning that he need not say anything in answer to questions asked of him by the police officer unless he wished but anything he did say may be used in evidence against him, to paraphrase the effect of the caution, the subject of specific reference in s 139 Evidence Act 1995.

9. The various documents I was given related to the subject matter of course of the oral evidence on the voir dire, but also of course were concerned with the admissibility of a number of text messages which have been identified as having been received on a mobile phone in the possession of the accused over a period of time from 21 January 2014 until after the accused came into the custody of the police. It is common ground in the evidence before me, putting aside the issue of the accused being stopped by Constable Janhke at approximately 6.48pm, that by 7.15pm the mobile phone to which I have just referred was in the possession of the police and the accused was unable to use it from that time onwards.

10. I will come back to the issue of the admissibility of the text messages because it is an issue that raises the more detailed legal considerations. I will deal with at first the secondary objection, as it was described, the matter the subject of oral evidence from Mr Jahnke concerning some conversations with the accused. In the statement of Mr Jahnke prepared on 7 February 2014, he gives evidence of a number of conversations that were had between himself and Mr Prasad initially and then subsequently with Mr Hong. The conversations had with the accused at least, at the time of the stopping of the car and subsequently, were the subject of audio visual recording. The police officer had a device attached to him which would record the things that he said and people said in his presence. As I would understand it, although I have not seen the video recording, the video recording of relevant events occurred from within the police car.

11. It turns out that from 7.03pm onwards the sound recording ceased to operate. Consequently I have evidence from Mr Jahnke that the conversations that are recorded in his statement up unto and including para 9, although para 9 itself does not contain any conversations, were recorded in his statement from the recording of the voices of himself and Mr Prasad. All subsequent conversations therein after appear in particularly in paras 10, 11, 12, 13, 14, et cetera are prepared by the Senior Constable from his memory or recollection of those conversations. No issues are taken in relation to that aspect of the Constable's evidence. That would appear to be not the subject of any specific legal issue that arises for determination on the voir dire. It certainly will no doubt be a matter that might need to be addressed in the presence of the jury.

12. What is objected to specifically by counsel for the accused is part of the conversation with the accused occurring after the Senior Constable asked Mr Prasad, (see p 5 of Jahnke's statement dated 7 February 2014) "Is there anything illegal in the car?". The accused replied according to the statement, "Yeah. There's probably an ice pipe in the back somewhere". Then there is a typographical error in the statement. It would appear the constable said, "Where did you say you were going again?" but the transcript goes on to say the Constable said, "Okay, as I said before, I'm going to search you. I'll just remind you that failing to comply may be an offence". The response of the accused to that question and subsequent questions, down to the bottom of p 5 of the statement is the relevant portion of the statement which the accused seeks to have excluded through the submission of his learned counsel.

13. What is essentially submitted is that in the context of the circumstances as the Constable then understood them to be, particularly from the time that the accused admitted that there was, "probably an ice pipe in the back", but taking into account other circumstances as well, the Constable was obliged to caution the accused. This he did not do, although later he did caution the accused.

14. What is relied upon, particularly in respect of s 139 Evidence Act is, in the circumstances in the evidence of the Senior Constable, the provision within s 139(5) Evidence Act, that states that a person:

"Who is under arrest, includes a reference to a person who is in the company of an investigating official for the purpose of being questioned if (b) the official would not allow the person to leave if the person wished to do so … (c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so."

15. Those are the particular matters referred to, although as I would understand the matter from the evidence that's emerged, I would imagine that counsel for the accused would also rely upon s139(5)(a):

"The official believes that there is sufficient evidence to establish that the person who has committed an offence that is to be the subject of questioning … "

16. I do not need to dilate upon the matter because I am quite satisfied it was admitted by the officer that the accused would not have been permitted to leave if he sought to do so. The accused, although not told he was under arrest, was constructively under arrest.

17. Thus the terms of s 139(1) are engaged. That relevant provision states:

"That for the purposes of s 138(1)(a) evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if...the person was under arrest for an offence at the time and the questioning was conducted by an investigating official who was at the time empowered because of the office that he or she held to arrest the person and before starting the questioning the investigating official did not caution the person, the person does not have to say or do anything but that anything the person does say or do may be used in evidence."

18. It is clear on the evidence on the voir dire that the accused, firstly, was under arrest. The questioning was conducted by an investigating official and the relevant questions and answers, the subject of objection which I have identified, occurred without a caution being administered.

19. However that is not the end of the matter. Of course, s 139 is to be read in conjunction with s 138, of the Act. I pause for a moment to point out as I have already pointed out to the learned Crown and to counsel for the accused, that it seems to me with the greatest of respect that in the overall scheme of things there appears to be no particular adverse effect, beyond what is already available from other evidence, upon the accused by the admission into evidence of the relevant conversation the subject of objection.

20. There would appear to be three relevant "admissions," made by the accused in the impugned conversation. Firstly, that he was going to, "Bondi". He was meeting, "A mate of his," referring obviously to Mr Hong and thirdly that $65 in his pocket was money that he told the police officer when asked, "Why is this money down here in your pocket and not in your wallet", "I was going to go to the pokies and have a slap".

21. I pause for a moment to point out of course the accused was driving the car on Old South Head, Bellevue Hill. He was heading in the direction of Rose Bay which is not too far away from Bondi. He asserted that he was going to meet a mate of the person who the Crown would say primarily in possession of drugs and cash, which appears to me to be unremarkable. His explanation for having $65 in his pocket, rather than his wallet, appears to be of no real significance. I discussed these matters briefly with learned counsel for the accused. He sought to rely upon their lack of adverse evidentiary value to the accused as being a matter I could take into account militating in favour of exclusion given the terms of s 138(3), that is the “probative value” of the evidence is very slight, and the evidence is not particularly important in the proceedings as I would understand it. That having been said of course it is conceded as I understand it that there was no deliberate or reckless impropriety, assuming of course, as I have said earlier, that I conclude that the action of not cautioning was relevantly "improper" as s 139 provides.

22. The gravity of the impropriety or contravention in my view was not great. It was a fluid situation the officer was facing. He said himself he was forming particular views about the matter as it unfolded. He made observations of the manner, particularly of the co-accused, that raised suspicions in his mind, and of course the fact the accused said he ‘probably had an ice pipe’ in the car would have further raised suspicions.

23. He made concessions in cross-examination about what his reasonable belief was at the relevant time that seemed to be inconsistent with the evidence that he gave in re-examination on the matter. I hasten to say that ultimately in the scheme of things, notwithstanding what I have said about the probative value of the evidence, to my mind it has almost complete lack of importance, my view is in the context of the terms of s 138(1), having concluded in the manner that I have that the evidence was improperly obtained or obtained "in consequence of an impropriety", and bearing in mind the Crown bears the onus in relation to the matter, that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained in the way in which the evidence was obtained.

24. Although in the scheme of things whilst technically there are admissions made the admissions themselves are of little evidentiary value. I have concluded on the balancing exercise, bearing in mind as I said the burden worn by the Crown, that the relevant portion of the conversation objected to should be admitted.

25. That takes me to the issue of the admissibility of the text messages, I think it is important in relation to that matter to address the matter from the perspective of the learned Crown. I firstly note that I accept the submissions of the Crown as to what the Crown says is the legal position in respect of evidence sought to be admitted post Evidence Act, that previously was admissible for what could be called "Harriman" purposes (Harriman v The Queen (1989) 167 CLR 590). This was a decision of the High Court that permitted the admission of evidence of criminal conduct of an accused person occurring on occasions other than that the subject of the charge, if the evidence was relevant to establishing a matter other than the fact that the accused was a person of bad character or otherwise had a propensity to commit crimes of the type of which he is charged.

26. To summarise the matter perhaps from the judgment of McColl JA in a decision that the Crown referred me to (R v Mostyn [2004] NSW CCA 97), Harriman v The Queen was a decision where each of the judges of the High Court in their various ways held:

"That the evidence of the accused’s prior involvement with another person in the sale of heroin was admissible on the ground that it was highly probative of the criminal character of the accused’s association with that person in Thailand (at the time or on the occasion of the commission of the offence for subject of trial)."

27. Of course, when one reads what McColl JA neatly summaries at [129] - [133], her Honour particularises various bases upon which that may be so. Likewise in another judgment to which the Crown referred the Court, the decision of Quach [2002] NSW CCA 519 (the Crown gave me a copy of the Australian Criminal Reports version), in the judgment of Spigelman CJ. His Honour, particularly at [24] - [42], went in some detail to identify the various bases upon which their Honours in the decision of Harriman had concluded that evidence of what could be called prior or other criminal conduct was relevant to a fact in issue in the case.

28. I need for the purpose of citing Harriman, perhaps only for illustration purposes, identify two passages from two separate judgments of that case to illustrate the summary provided by McColl J in the later judgment of Mostyn.

29. Brennan J in Harriman identified the principle at p 594 in the following way,

“where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. If, as a matter of human experience, the evidence tends to establish the offence charge or a fact in issue posited … otherwise than by showing merely the commission of another offence or a propensity to commit an offence the evidence is admissible. I would therefore respectively agree with McHugh J that evidence of events which are part of the res gestae is admissible and will usually be admitted even if that evidence reveals the commission of an offence other than the offence charged”.

30. I interpose this reading of that passage to point out, as the learned Crown properly pointed out to me, that notwithstanding the fact the expression “res gestae” has its origins in the common law, in the context of the provisions of the Evidence Act as Quach and Mostyn makes clear, evidence forming part of the res gestae may be admissible for the purposes submitted by the Crown. Providing, of course in the context of what I am concerned with, that the evidence does not establish a relevant tendency on the part of the accused in circumstances where the Crown otherwise does not rely upon tendency reasoning which is the case here, there being no ‘tendency’ notice served.

31. Gaudron J stated the principle as follows, at p 613:

"Evidence which shows no more than the propensity of an accused to engage in criminal conduct of a particular kind, or that the accused is the sort of person likely to commit the offence charged, is not admissible to prove that he committed the offence charged...however the evidence which has a high probative value and raises as a matter of common sense and experience the improbability of the offence charged having been committed other than as claimed by the prosecution is admissible in a criminal trial, notwithstanding that it discloses prior criminal conduct or a propensity to commit the offence."

32. The reading of those passages, and other passages that have been cited by Spigelman CJ from Harriman, demonstrates the fact that the admissibility of the evidence on the basis of relevance (s 55 Evidence Act) turns upon the evidence having a purpose other than a purpose to establish either a "propensity" as it was expressed in common law terms, now called "tendency" under the Evidence Act (unless admissible for that purpose), or a purpose other than simply to show the commission of other offences by the accused in the relevant case.

33. The objection of the accused hones in upon relevant text messages appearing in the schedule of text messages downloaded from the accused’s phone by police which would be the subject of opinion evidence from Detective Sergeant Adam Pierce. Detective Sergeant Adam Pierce's statement purports to identify various text messages and express opinions about whether those text messages are possibly concerned with, or consistent with, discussion of transactions relating to the supply of drugs.

34. In fairness to the Crown's position it is important to note some of the matters that were identified by the learned Crown Prosecutor in his helpful submissions at the end of the voir dire yesterday. The Crown clearly submitted, as I accept, that the Harriman principle still applies, notwithstanding the subsequent enactment of the Evidence Act. The Crown is permitted to produce evidence relevant to the issue of "relationship" of the accused with his co-accused in the context of what the Crown alleges to be a “joint criminal enterprise” where a jury might end up concluding, absent other evidence, that the person who was in possession of the relevant drugs was not the accused but the man Hong. I point out, I hasten to say, that Mr Hong has pleaded guilty before me today in relation to the supply of the drugs subject of the indictment relating to this particular accused.

32. Furthermore, the Crown submitted that in accordance with ‘Harriman principles’ surviving with the enactment of the Evidence Act, that evidence of what could be called "res gestae" that is evidence of a series of events related to a particular transaction the subject matter of the charge, would be admissible in accordance with the decisions of Mostyn and Quach amongst others. The Crown submitted that the evidence it seeks to rely upon of text messages, the subject of objection by counsel for the accused goes, to show that the accused was in the business of supplying prohibited drugs, either generally or specifically and it was also submitted that the relevant text messages show the relationship between the accused and the co-accused. This is in the context of what the Crown submitted to be a joint criminal enterprise.

33. The Crown fairly conceded that there are some difficulties for it to overcome. One difficulty identified was text messages that lacked a contemporaneity with the course of events which point to the existence of a joint criminal enterprise between the accused and Mr Hong to supply the particular drugs, the subject of the charge.

34. The other particular matter the Crown fairly conceded in its submissions was the difficulty of establishing relevant matters particularly in respect of purported "res gestae" issues where particular text messages could reasonably be said to relate to drugs other than the drug ‘methylamphetamine’.

35. It is in this context that particular text messages numbers 3668-3674, that is text messages sent to the accused's phone between 6.17pm and 8.19pm on 5/2/2014, were the subject of objection by the accused on a basis that the Crown fairly conceded had substance. That is, those relevant text messages might be regarded as not being concerned with the supply of methylamphetamine, but might be concerned with the supply of a drug shortly described as GHB. Mr Jahnke gave evidence today that the use of the expression "drinkage" in some of those messages would be understood by him, consistent with a COPS entry that he made in relation to the matter on the night of the accused's arrest, with inquiries being made about obtaining the drug GHB. A drug not the subject of charge in this case.

36. I agree with the Crown's general submission that a number of the text messages, the subject of objection, might reasonably be seen to suggest, at least, inquiries made of the accused concerning the obtaining of prohibited drugs and could be considered by a tribunal of fact as indicating that the accused was in the business of supplying drugs. But the admissibility of the evidence does not turn upon establishing that matter by itself, unless the Crown sought to rely upon the issue of the accused supplying drugs on a regular basis as evidence in a relevant ‘tendency’ on his part that was admissible pursuant to s 97 Evidence Act 1995.

37. Ultimately, on examination of the various text messages noting the specific objections of counsel for the accused and the submissions made by the learned Crown, I have come to the conclusion that, firstly, the text messages, the subject of objection, do not fit within Harriman's principles, because what they may establish about the relationship of the accused with other people does not inform the relationship of the accused with the man Hong. In that respect, in the careful written submissions of the accused which I have not referred to at this point, Mr Munro for the accused accurately reflects the issue that is to be considered in the context of what the Crown says is ‘relationship evidence’. That is, whether there is evidence capable of establishing by reason of activities on other occasions the character of the relationship between the accused and Mr Hong, not anyone else.

38. I have received no evidence nor any particular submission to suggest that the various text messages the subject of objection are in fact messages between the accused and Hong reflecting upon their relationship at the relevant time. As I have earlier pointed out, it was as McColl J succinctly stated that:

"Evidence of the accused's prior involvement with X (that is Mr Martin) in the sale of heroin was admissible on the ground that it was highly probative of the criminal character of the accused's association (read relationship) with X (Mr Martin) in Thailand in April 1987."

42. That is the time at which the offence for which Mr Harriman was on trial, the subject of the appeal to the High Court.

43. Furthermore, the difficulty the Crown identified in his very helpful submissions about establishing anything of relevance to the charge in question by the accused's involvement in the supply of different drugs is another factor that militates in favour of exclusion. Thus, the conclusion I have reached is that the relevant text messages, the subject of objection by the accused, are not admissible because they are not relevant to a fact in issue to the trial.

44. Alternatively, in my view, if they served the probative purpose asserted by the Crown and thus had relevance, it is quite clear, in my view, where such text messages might by reason of their timing or by reason of their content be sensibly concerned with criminal conduct other than that, the subject of the charge they are matters where the probative value is clearly outweighed by the unfair prejudice to the accused. But as I said, when it is all said and done, conceding all that has been said by the Crown in terms of the legal issues that I have to consider, the relevance purported to be established by the Crown in the context of the terms of s 55 Evidence Act 1995 is not demonstrated.

45. Thus, in the circumstances of the matter as I have foreshadowed, I will only permit into evidence the relevant text messages that are not objected to by the accused. The other text messages are excluded on the basis that they do not demonstrate a relationship between the accused and Mr Hong. Alternatively, they are concerned with criminal activity other than that with which I am concerned in this trial and are thus irrelevant as merely demonstrating "a propensity" or a "tendency" theoretically at least, on the part of the accused to commit crimes generally.

46. I should particularly refer to text messages 3675 and 3676. These text messages were received on the accused's phone at 8.24 and 8.28pm on 5 February 2014 when the mobile phone taken from him at 7.15 was in the possession of the police. The Crown seeks those text messages to be admitted on the basis, amongst other things, that in those text messages the reference to ‘HG’ might be interpreted as being a reference to someone indicating to the accused that he or she wanted half a gram of a prohibited drug.

47. Consistent with the ruling that I have made, notwithstanding the reference to the use of the expression, "ur friend Malaysia", which possibly could be a reference to Mr Hong as with "ur friend" in the second message, and notwithstanding the timing of the message, I am not satisfied that it is capable of being considered as a message that has a relationship to the course of the ‘joint criminal enterprise’ that the Crown alleges against Mr Hong and Mr Prasad in respect of the drugs that were found within the car. That is, as with the other messages, it is not part of the purported “res gestae”.

48. Prima facie, it would appear to me to be concerned with another transaction. As I have said earlier, I am not able to conclude that it has the probative value of establishing any particular relationship between the accused and Mr Hong.

49. Thus, those two messages and the other messages on the last page of the schedule attached to Mr Pierce's statement are within the character of text messages, the subject of objection, which I would not admit.

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Decision last updated: 29 January 2016