R v R & Nasradden
[2017] SADC 111
•29 September 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v R & NASRADDEN
[2017] SADC 111
Reasons for Ruling of His Honour Judge Barrett
29 September 2017
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - JOINDER OF PERSONS OR COUNTS
Both accused are charged with trafficking in a controlled drug (counts 1 and 2 relating to methylamphetamine and cocaine) and pre-trafficking in a controlled precursor (count 3 – pseudoephedrine). R alone is charged with dealing with money believed to be proceeds of crime (count 4). The accused applied to have counts 3 and 4 severed form counts 1 and 2 and from each other.
Held: Count 4 is severed, but counts 1, 2 and 3 are to be heard together.
Evidence Act 1929 s 34P, referred to.
R v Soteirou [2013] SASCFC 114; R v Pringle [2017] SASCFC 9; R v Conley (1982) 30 SASR 226; Pfennig v R (1995) 182 CLR 461; R v Perfili (2006) 95 SASR 560 , considered.
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - EVIDENCE BY CLOSED-CIRCUIT TELEVISION
CRIMINAL LAW - EVIDENCE - HEARSAY - PARTICULAR MATTERS
EVIDENCE - DOCUMENTARY EVIDENCE - OTHER MATTERS
The drugs allegedly being trafficked by the accused were located in a unit in a commercial lockup. Security of the lockup included CCTV cameras and computer monitoring of activity in the units. The unit where the drugs were located was secured by a combination lock allegedly purchased by R on EBay. The prosecution sought to prove that purchase by EBay, PayPal and Australia Post documents retained at the business premises of a supplier of locks. The identity of the accused was sought to be proved by circumstantial evidence consisting of a conversation in which Nasradden is said to have sought to hire a unit close to that of his friend, CCTV and the activity logs were suggestive of both accused moving containers from R’s unit to Nasraddens’ unit the night before the drugs were located in Nasradden’s unit and the alleged purchase by R of the combination lock securing that unit. The accused sought the exclusion of the employee’s conversation with Nasradden, CCTV footage and activity logs and the lock supplier’s documents.
Held: The conversation is not hearsay and is admitted. The CCTV footage and activity logs are business records and have been established as reliable. They are admitted. The lock supplier’s documents are business records and are admissible.
Evidence Act 1929 s 53, s 56, referred to.
Hillier v Lucas (2002) 81 SASR 451; Mehesz v Rodman (1989) 26 SASR 244; R v Edwards [2007] SASC 202; Tripodi v R (1961) 104 CLR 107; Ahern v R (1988) 165 CLR 87, considered.
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS
There was detected on tea towels in one of the containers adjacent to the drug containers DNA likely to be that of R. The accused sought the exclusion of the DNA evidence on the ground that the possibility of the transference or contamination rendered it unreliable.
Held: the DNA evidence is admissible.
DPP v Tom Massey [2017] VSCA 38; Dan Wise [2016] VSCA 173; R v GZ [2015] ACTSC 229; R v Joyce (2002) 173 FLR 322; R v Ali [2015] NSWCCA 72, considered.
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
The accused sought to exclude the location by SAPOL of the drugs in the unit on the ground that the search was unlawful.
Held: The search was a lawful execution of a general search warrant.
Crimes Act 1914 s 3E, referred to.
R v Nguyen (2013) 117 SASR 432, considered.
R v R & NASRADDEN
[2017] SADC 111
Both accused are charged with drug offences arising from the discovery by SAPOL of a substantial quantity of drugs in a security lockup called Safeco at Windsor Gardens on 16 October 2012.
At about 8:40 pm on 16 October SAPOL officers, acting on information given to them by AFP officers, went to the lockup and broke a combination lock on unit 521. Inside the unit was a white bucket and two wicker baskets. In the white bucket there was 24 kg of iodine, one of three ingredients needed to manufacture methylamphetamine. The other two ingredients are pseudoephedrine and hydrophosphoric acid. In the smaller of the two wicker baskets there were three drugs:
·400 grams of pseudoephedrine
·879.7 grams of methylamphetamine
·1010.9 grams of cocaine
Both accused are charged in relation to these three drugs. They are charged with the following offences:
Trafficking in a commercial quantity of a controlled drug (methylamphetamine-the commercial quantity is 750 grams) contrary to s 302.2 (1) or alternatively 302.2 (1) and s 11.2A of the Criminal Code Act
Trafficking in a marketable quantity of a controlled drug (cocaine- marketable quantity is 250 grams) contrary to s 302.3 (1) or alternatively 302.3 (1) and s 11.2 A of the Criminal Code Act
Pre-trafficking a controlled precursor (pseudoephedrine) contrary to s 306.4 (1) or alternatively s 306.4 (1) and s 11.2 A of the Criminal Code Act
There is a ‘reverse onus’ in respect of the methylamphetamine and cocaine charges where more than two grams is possessed. There is no reverse onus in respect of the precursor charge.
Both accused are charged in the Magistrates Court with possessing a prescribed quantity of a controlled precursor without reasonable excuse contrary to s 33 LB of the Controlled Substances Act. That charge relates to the iodine. It is still pending in the Magistrates Court, effectively awaiting the outcome of the District Court charges.
R was arrested on 19 December 2012 and his house was searched. Police found three separate sums of money - $50,000 in a wardrobe in the main bedroom, $3665 in a bag in the main bedroom and $3850 in a white shoe in a spare bedroom. They also found indicia of drug trading.
Nasradden was arrested on 21 December 2012 and his house was searched. Police found $15,000 in a portable heater in the lounge room. They also found indicia of drug trading.
Both accused are charged with offences of dealing with money believed to be the proceeds of crime. In the case of R the charge is dealing with $50,000 or more, contrary to s 400 5(1) of the Criminal Code Act and Nasradden is charged with dealing with more than $10,000 contrary to s 400.6 (1). The prosecution laid an information in the District Court dated 12 October 2015 charging both accused with the methylamphetamine, cocaine and pseudoephedrine offences and R alone with the proceeds of crime offence. Thus the prosecution sought to have heard together the three drug charges relating to the drugs found on 16 October 2012 (counts 1,2 and 3) and the proceeds of crime offence allegedly committed by R alone on 19 December 9 (count 4).
Course of pre-trial applications
I became seized of the matter on the 4 October 2016. His Honour Judge Millsteed had recused himself. His honour made pre-trial orders before this time of which I have no knowledge. The trial was listed for hearing on the 17 October.
R had filed what was apparently a fresh Rule 49 notice dated 30 September 2016. It contained 19 applications to exclude evidence.
Nasradden had filed a Rule 49 notice dated 29 September 2016 which contained 6 applications and an additional notice dated 5 October 20016 with one further application. I sought to deal with the applications before the trial date but for reasons which it is not productive to canvas the parties were not ready to proceed. All parties sought to have that trial date vacated. I vacated the trial date.
On 1 November 2016 I fixed the 4 September 2017 as the new trial date with a month set aside. In the ensuing months I sought to hear the pre-trial applications. Hearings were conducted on 29 and 30 May 2017 and 31 July. I made rulings without giving reasons on 11 August 2017.
I set aside an hour on 31 August 2017 for argument in relation to the further matters.
On 31 August new counsel appeared for R to conduct the remaining pre-trial matters. The question of how a public interest immunity claim lodged by AFP should be dealt with was discussed on that day but adjourned to the following day.
On 1 September I determined that I should not hear the public interest immunity claim lest that lead to the need for me to recuse myself. The Chief Judge asked His Honour Judge Chivell to determine that matter. The application was adjourned for hearing by him on Monday 4 September.
Before me Mr Michael Abbot QC advised that there had been filed that day on R’s behalf a notice pursuant to s 78B of the Judiciary Act challenging the constitutionality of AFP officers ‘utilising’ SAPOL officers to search the Safeco units. That matter was adjourned to Monday 4 September to enable the Solicitor-General to attend if he was in a position to do so.
On Monday 4 September I was told that the public interest immunity claim by the AFP had been abandoned because the identity of the source of the information to the AFP had been unexpectedly disclosed.
The voir dire hearing began before me dealing with the application by both defendants to have excluded the fruits of the search of the Safeco units. Five witnesses gave evidence over that day and the following two days. Addresses took place on the 7 September. I made findings and rulings regarding the search on the same day. I admitted the evidence.
On 8 September I was told that the Judiciary Act notice had been withdrawn. On that same day I heard and determined R’s final application to have excluded evidence relating to the alleged purchase by him of the lock said to have been used to secure the unit where the drugs were found. I admitted the evidence.
The trial proper began on Monday 11 September. Where I have no record of the outcome I have left a question mark. Those matters may have been agreed between the parties or they may have been the subject of rulings by his Honour Judge Millsteed.
The Rule 49 notices
I set out in tabular form the applications for each accused and the dispositions of each.
R 30 September 2016
Paragraph
25 Application
26 Disposition
27 1
Conditional stay
28 ?
29 2
Severance of count 3 (pseudoephedrine) from other counts
30
Severance declined on 11/8/2017
31
32 3
Severance of count 4 (R cash) from other counts
Severance ordered on 11/8/2017
33 4
CCTV footage of Safeco
Evidence admitted on 11/8/2017
34 5
Evidence of Thanissorn
Conceded by prosecution
35 6
Search of unit 521
Evidence admitted on 07/9/2017
36 7
Discovery of iodine
Admitted on 11/8/2017
37 8
Evidence of Adams regarding security systems at Safeco
Evidence admitted on 11/8/2017
38 9
Evidence of Steen identifying R
39 ?
40 10
Wilby
Admitted on 11/8/2017
41 11
eBay and PayPal/lock
Admitted on 08/9/2017
42 12
Smyth/PayPal
43 ?
44 13
DNA
Admitted on 11/8/2017
45 14
Telephone intercepts
46 ?
47 15
Surveillance
Conceded by prosecution- not led
48 16
Search of R’s house on 19/12/2012
Excluded due to severance of count 4
49 17
Examination of R’s partner’s phone
50 Severed
51 18
Traces of drugs found in R’s house
52 Severed
53 19
Evidence re drug dealing
54 Severed
R amended application 4 September 2017
This notice duplicates the applications in the earlier notice.
Nasradden 29 September 2016
56 1
57 [Information] and it’s particulars
58 ?
59 2
60 Intercepted calls between accused
61 ?
62 3
63 Telephone voice identification
64 ?
65 4
66 Scales found at house on 21/12/2012
Excluded on 11/8/2017
67 5
68 Comments made by Nasradden during search of his house
Excluded on 11/8/2017
69 6
70 Surveillance
71 ?
Nasradden additional application 5 October 2016
72 1
Cash found at house on 21/12/2012
Excluded on 11/8/2017
Reasons for rulings
Severance
I severed count 4, the R proceeds of crime charge, from counts 1, 2 and 3, the three drug charges against both accused. I declined to sever count 3, the pseudoephedrine charge, from counts 1 and 2, the methylamphetamine and cocaine charges. As well as severing count 4 from counts 1, 2 and 3 I excluded all the evidence of materials located at R’s house on 19 December. That exclusion was based only on the ruling that count 4 was to be severed from the other counts. I do not purport to exclude that evidence from the separate trial that may be held in relation to the severed count 4.
Although Nasradden’s proceeds of crime charge was not laid on the information, I understood the prosecution to be seeking to lead evidence of the cash and other indicia of sale located by the police at his house when he was arrested on 21 December. On that understanding I excluded that evidence as well, but again, I did so only because I severed from this hearing any charge relating to items found at the house of either accused on 19 and 21 December. I did not purport to exclude the Nasradden material from any trial relating to offences allegedly committed by him on 21 December. The admissibility of the evidence associated with each of the accused on 19 and 21 December will be for determination by the judges conducting any trials relating to them.
I turn first to the reasons for severing count 4. The prosecution seeks to lead the evidence of cash and indicia of sale of drugs found at R’s house on 19 December to support the inference that he had an interest in drugs and was trading in drugs. The traces of drugs in his house supports the former. The cash and scales support the latter.
The principles governing the admissibility of discreditable conduct are developing around the provisions of s 34 P of the Evidence Act. Those principles apply to conduct which is the subject of a charge and also that which is uncharged: R v Maiolo (No 2)[1].
[1] [2013] SASCFC 36 at [131], per Peek J.
The evidence may not be admitted if as a result it is suggested that the accused is more likely to have committed the offence because he is engaged in the discreditable conduct. That is an impermissible use (s 34P (1)).
Given that in certain circumstances propensity reasoning is permitted, that subsection has been interpreted to mean that it is impermissible to reason that mere propensity, or propensity alone, is probative of guilt. In R v Soteirou[2] Vanstone J noted that the terms of the propensity warning where propensity evidence is nevertheless admitted should be along the lines of that adopted by Cox J in Pfennig – you do not ‘condemn a man simply on his record’ or as Kirby J said in KRM - to warn against ‘proof of one count is not taken, as such, as proof of another’.
[2] (2013) SASCFC 114 at [39].
Before the evidence is admissible for a permissible purpose the Court must be satisfied that the probative weight substantially outweighs any prejudicial effect (s (2)(a)). Where the evidence tends to demonstrate propensity or disposition, the evidence must have strong probative value, bearing on the issues in the trial (s (2)(b)).
The final test for admission is that the permissible and impermissible uses must be capable of being kept sufficiently separate and distinct from each other (s (3)).
My attention was drawn to the need to be able to draw a clear inference between the discreditable conduct and the relevant charge R v Pringle[3].
[3] [2017] SASCFC 9 [80] and [81] per Nicholson J.
That said, as Vanstone J observed in R v Soteriou[4] , there has been authority for a considerable time that uncharged drug related activity might be admitted to demonstrate an interest in the drug trade. Her Honour referred in that connection to the judgment of King CJ (with whom White and Cox JJ agreed) in R v Conley[5]. Her Honour remarked that that reasoning was permitted before the High Court in Pfennig v R[6] more explicitly approved propensity reasoning in certain carefully confined circumstances, and before the enactment of s 34 P.
[4] (2013) 118 SASR 119.
[5] (1982) 30 SASR 226.
[6] (1995) 182 CLR 461.
I concluded that the evidence of the cash and items found at R’s house on 19 December 2012 was not admissible in proof of counts 1, 2 and 3. I did so for three principal reasons:
1There was a gap of just over two months between the discovery of the drugs in Safeco on 16 October and the items found in R’s house on 19 December.
2On the evidence to be presented in the trial there was nothing to suggest other drug trading by R. The drugs found on 16 October were in effect intercepted. There would therefore be no persuasive link between the drugs and the items found at the house.
3Count 4 related to R alone. I considered that there might be some incurable prejudice to Nasradden if the evidence relating to R alone was admitted. That is notwithstanding that I understood the prosecution sought to lead the uncharged conduct of Nasradden referable to his arrest on 21 December.
My reasons for excluding the uncharged conduct of Nasradden, that is the discovery of cash and indicia of sale at his house, are the same as the first two reasons for excluding the material found in R’s house. Plainly if I excluded the evidence relating to R I should also exclude the evidence relating to Nasradden.
I turn to the reasons for declining to sever count 3, the pseudoephedrine charge. Allied to that topic is my admission of the evidence of the iodine found in the same unit as the pseudoephedrine and the other drugs. Although the iodine is not the subject of a charge on the District Court information both accused are charged with possessing that controlled precursor on the Magistrates Court information. Pseudoephedrine and iodine are two of the three ingredients needed to make methylamphetamine. There were substantial quantities of the two precursors. There was 24 kg of iodine said to be worth $12,000 to $18,000. The iodine was located in the white bucket. There was 400 grams of pseudoephedrine said to be worth $71,000. The pseudoephedrine was located in the same small wicker basket as the methylamphetamine and cocaine. The wicker basket was next to the white bucket in unit 521 at Safeco.
The principal objection taken to the admission of the pseudoephedrine evidence was that, whereas in respect of counts 1 and 2 there arises a rebuttable presumption of intention to sell upon proof of possession of more than the trafficable quantity of both drugs (2 grams in each case), no such presumption arises in respect of pseudoephedrine. Further, it is plain that in respect of count 3, two separate intentions must be proved by the prosecution - first, the intention that the accused intended that the pseudoephedrine would be used in the production of methylamphetamine and second, that the resulting methylamphetamine would be sold.
It is recognised that it is generally undesirable that charges should be heard together where a rebuttable presumption arises in respect of some counts but not in respect of others. Sulan J explained reasons for that principle in R v Perfili[7]. There may be insurmountable difficulties in directing a jury to accommodate the differences between the ingredients of different offences.
[7] (2006) 95 SASR 560 at [45].
In my view those difficulties simply do not arise in this case. It was plain from the materials that the primary, if not the only, issue for the jury to determine was whether it was proved that each individual accused was in possession of the particular drugs. If possession were proved it was highly unlikely that it would be suggested by either accused that he was in possession of the drug for some purpose other than sale.
The prosecution case is that trafficking is to be proved by the route of possession for sale. The quantities of the methylamphetamine and cocaine are so large that the intention to sell is overwhelming without resort to the presumption. The trafficable quantity of both drugs is 2 grams. There was located 879.7 grams of methylamphetamine worth about 1.5 million dollars and 1010.9 grams of cocaine worth between 1 million and 1.3 million dollars.
In my view the evidence of the presence of all three drugs is cross admissible. The presence of each in such a substantial quantity tends powerfully to prove that all three were possessed for the purpose of sale. It is true that the quantities of each have different legal descriptions. The methylamphetamine is in a commercial quantity (i.e. more than 750 grams), the cocaine is in a marketable quantity (i.e. more than 250 grams) and the quantity of pseudoephedrine has no legal characterisation. Nevertheless all three are in substantial quantities, indicative of sale. There is in my view no purely prejudicial effect to be weighed against the strong probative weight of the evidence. The Crown case is that all three drugs were moved by the accused from unit 508 to unit 521 on 15 October 2016 and there secured with a lock. All three drugs were in the same container – the smaller wicker basket. The defence to the allegation in respect of all three drugs is likely to be a denial of possession. The evidence of the three drugs in not cross admissible in proof of possession, but it is highly probative of the commercial intention.
For these reasons I declined to sever count 3 from counts 1 and 2.
Iodine
The accused objected to the admissibility of the location of the 24 kg of iodine found in the white bucket. The alleged possession of the iodine is uncharged discreditable conduct, at least uncharged on the District Court information. Part of the objection to the admissibility of the iodine in this trial is that it prejudiced both accused in their defence to the Magistrates Court charge. That charge is adjourned pending the outcome of this trial.
As in the case of the pseudoephedrine, the quantity of iodine has no legal characterisation. However the quantity is very substantial – 24kg. The quantity is powerfully indicative of a commercial purpose, particularly when found in the same unit as the 400 grams of pseudoephedrine. It is immediately apparent that the two quantities are not the same. If the three ingredients of the manufacture of methylamphetamine had to be applied equally in the process there is vastly more iodine than pseudoephedrine. However the respective values of the quantities of the two precursors suggests that iodine is easier to come by; 400 grams of pseudoephedrine is worth about $71,000 whereas 24 kg of iodine is worth only $12,000 to $18,000.
Nevertheless the presence of the iodine is in my view powerfully probative evidence of two aspects of the prosecution’s case in respect of count 3. The presence of iodine is indicative of an intention that the pseudoephedrine will be used to manufacture methylamphetamine. Its quantity is indicative of an intention that the resulting methylamphetamine will be sold. Insofar as the iodine evidence is to be led to indicate propensity to pre-trafficking pseudoephedrine, and trafficking the other drugs, it meets the criteria contemplated by s 34 P ss (2) (b) and (3). The strong probative value of the evidence outweighs any prejudicial effect. In fact I can see no purely prejudicial effect unless it be the effect on the Magistrates Court charge.
I turn to the Magistrates Court charge. As I understand the argument it is that if the iodine evidence is admitted in this trial R’s election whether to give evidence or refrain from doing so in this trial will be unreasonably influenced by his apprehension about having to make the same decision in the Magistrates Court trial. There is also converse effect. Any decision made in this trial will unreasonably constrain him in the Magistrates Court.
Counsel sought to draw an analogy between the position the accused would be placed in and the position of accused in the cases of Lee and Lee v R[8], Commissioner of the AFP v Zhao[9] and X7 v Australian Crime Commission[10]. In my view the analogies are simply not apt. In the cases of Lee and X7 there were cohesive powers requiring the accused to answer in the State and Commonwealth Crime Commissions before which they appeared. In the case of Zhao there were forfeiture proceedings which would effectively require the accused to disclose his case in impending criminal trials.
[8] (2014) 253 CLR 455.
[9] (2015) 255 CLR 46.
[10] (2013) 248 CLR 92.
In the present case the accused maintains his right to silence in both this trial and the proceedings in the Magistrates Court. In my view there is no prejudicial effect to bear in mind.
Safeco
There are several applications to exclude the evidence relating to the Safeco lockup. I leave aside for the present the challenge to the legality of the search of the units undertaken by SAPOL officers.
The three Safeco challenges concern:
1The CCTV recordings
2The activity logs of the units
3The evidence of the employee Ms Wilby
The premises of Safeco are situated at Windsor Gardens. It is a substantial commercial site with an office at the front and a two storey warehouse behind the office. There is a driveway at the side of the office secured by an electrically operated gate. Tenants of the storage units have access through the gate by entering their own PIN code on a keypad on the public side of the gate. Their egress through the gate is achieved by operating another keypad on the inside of the gate.
Access to the warehouse storage area is via one of three loading bays each secured by a roller door. During office hours the roller doors are left open. After hours the roller doors are closed and may be opened by customers entering their PIN number on a keypad outside each roller door.
The storage units inside the warehouses are on two floors. They vary in size depending on the customer’s storage needs. Units 508 and 521 are on the upper floor and were both of a fairly modest size. The security of each unit appears to be left up to the customers. The latches are such that padlocks can be attached to them.
There are two further aspects to security. There are CCTV cameras located at several points on the premises. There are cameras attached to the side of the office which monitor entry and exit through the security gate. There are cameras inside the office. There are cameras mounted on the outside of the three loading bays. There are also cameras mounted inside the warehouse. The cameras are mounted so as to monitor the stairways joining the two levels. These same cameras monitor what might be described as intersections in the rows of units.
There is also a system of computer monitored alarms fixed to the individual units. There can be produced computer logs which record activity at each unit. By activity I mean the opening and closing of the door to the unit. If a customer enters their PIN number at either or both of the front gate and the loading bay their subsequent opening and shutting of the unit door will be simply so recorded - as either closing or opening. If they have failed to enter their PIN number, the opening of the unit will trigger a silent but computer recorded alarm. The computer records of the activity can be viewed on computers in the office.
The relevant personnel at Safeco in 2012 were Mr David Adams, the CEO of Safeco, and Mr Michael Steen and Ms Tonie Wilby, both employees whose duties included serving at the front desk in the office.
While the evidence of each of these people bears on the challenge to the search of the units by the police, their evidence on the present challenges is as follows. Mr Adams explained how the CCTV cameras and the security logs work. Mr Steen served R when he rented the unit 508 on 5 July 2012.
Ms Wilby served Nasradden when he rented unit 521 on 13 October 2012, just four days before the drugs were located in that unit. The significance of her evidence is that she recollected parts of her conversation with him when he rented the unit. She said she recollected the conversation because it was unusual in two respects. She said whereas most customer were interested in finding out the size of the unit so that they could work out what size they required, Mr Nasradden only requested that his unit be as close as possible to that of his friend. She said Nasradden gave her the number of the friend’s unit although she could not remember what it was.
The second unusual feature was when he was asked to nominate a PIN code to access the premises, Nasradden said initially that he did not need a PIN code because he would be accessing the units with his friend. Only when Ms Wilby explained to him that if he did not have a PIN code and failed to enter it before he came into the units an alarm would be recorded each time the unit was accessed. Upon receiving that information Nasradden provided a PIN code.
The Crown case is that Nasradden sought a unit close to that of R’s because the two of them planned to move the drugs from unit 508 to 521. There is TV footage showing two men carrying the white bucket and two wicker baskets from the direction of unit 508 in the direction of 521 at about 8.30 pm on Monday 15 October. Nasradden had nominated to Ms Wilby on 13 October that he wanted his lease to start on 15 October. The Crown case is that on 15 October CCTV footage shows Nasradden carrying the white bucket and R carrying the two wicker baskets. At about 8.40 pm on 16 October unit 521 was found to contain the drugs in those two containers. The unit was secured by a combination lock said to have been provided by R. That lock is the subject of a separate challenge.
The Crown case is that by comparing the CCTV footage and the activity logs of both units the identity of both accused can be proved.
I turn to the challenges to the CCTV footage, the activity logs and Ms Wilby’s evidence.
CCTV and logs
The prosecution submits that the CCTV footage and activity logs are the business records of Safeco and therefore admissible pursuant to s 53 of the Evidence Act. Section 56 of the Act is called in aid to authorise the production of the records of footage from the CCTV devices and the logs from the computer. Mr Adams is able to verify the records. Together it is said the records are capable of identifying the accused at the critical time, that is the movement by two men of what is said to be the drugs from unit 508 to 521 on 15 October.
The first objection is that neither the CCTV footage nor the logs are business records within the meaning of s 53 of the Evidence Act. Safeco are in the business of renting storage units not taking photographs of people or recording the activity of their storage units. In my view that contention is untenable. Part of the service offered to customers by Safeco is the security of the units they rent. The CCTV cameras and the activity logs are part of that security.
The second submission is that even if the footage and logs are business records they should be excluded for reasons set out in s 53 (2) of the Act. The person by whom the record is made should be called (placitum (a)). The evidence is slight and is outweighed by a prejudice (placitum (b)). It is in the interests of justice to do so (placitum (c)).
R cited the discussion by Lander J in Hillier v Lucas[11] in support of the exercise of the exclusory discretion. In that case his Honour (and Duggan and Bleby JJ who agreed) excluded the evidence of hospital case notes on the basis that the doctor who prepared them should have been called.
[11] (2002) 81 SASR 451 at [180]–[182].
In this case R submits that the prosecution calling Mr Adams to explain how the CCTV works, how the footage was downloaded and how the activity log is generated by the computer is insufficient. It is insufficient on a number of bases:-
·No one has explained how the CCTV works, or how the selections of footage that Adams downloaded and recorded on a disc or discs have been so downloaded;
·No one has explained the means by which the computer records the activity of the units and how the selections of the logs have been prepared.
It is true that Mr Adams has not been able to explain how the CCTV or the computers work. What he was able to say however was that he was able to see certain footage and reproduce it on discs. He was able to recover from the computer the activity logs.
Section 56 (2) of the Evidence Act is an aid to proof of the ability of the CCTV cameras and the computer to produce relevant material. That section provides:
56—Evidence produced by processes, machines and other devices
(1) This section applies to a document or thing—
(a) that is produced wholly or partly by a device or process; and
(b) that is tendered by a party to proceedings who asserts that, in producing the document or thing, the device or process has produced a particular outcome.
(2)If a device or process is one that, or is of a kind that, if properly used, will ordinarily produce that outcome, it will be presumed, in the absence of evidence to the contrary, that, in producing the document or thing on the occasion in question, the device or process produced that outcome.
Example—
It would not be necessary to call evidence to prove that a photocopier normally produced complete copies of documents and that it was working properly when it was used to photocopy a particular document.
The accused challenged the CCTV and log evidence on the basis that s 56 does not assist in establishing the reliability of the instruments. The monitoring does not meet the criteria for reliability discussed by King CJ and White J in Mehesz v Rodman[12].
[12] (1989) 26 SASR 244 at [248]-[251-2].
I reject that submission. That case is authority for the propositions set out in White J’s judgment on pages 251-2. If the instrument is a ‘notorious scientific instrument’ i.e. one in respect of which judicial notice will be taken of its capability and reliability, then more proof is not required. If the instrument is not in that class then expert evidence may need to be called to establish its capability and reliability. Finally the accuracy of the instrument may be inferred from proved circumstances.
In this case I would have thought that CCTV cameras and computers are notoriously capable of producing the relevant evidence in this case. If they are not I then I accept that Mr Adams is not an expert in the operation of the two instruments beyond being someone who is able to extract information from them.
However there is evidence from which it may be inferred that both instruments are reliable.
I take the CCTV cameras first. I cite an instance of the CCTV cameras being proved reliable. Ms Wilby provided a statement and gave evidence on the voir dire to the effect that on the 13 October 2012 she served Nasradden in the office of Safeco. By reference to Nasradden’s application to rent a unit she nominated the day on which she served him. She then viewed the CCTV footage. She identified herself and Nasradden in two locations, the front office and the area in the warehouse where the units 508 and 521 are located. There is no challenge to that part of her evidence. In my view that evidence is sufficient to infer that the CCTV camera, particularly the critical one in the warehouse, was capable of recording what it purports to record and it records it accurately.
Criticism was made that the time and date shown on the footage is inaccurate. That criticism was answered by Mr Adams’s evidence that while the date shown is accurate, the time shown is approximately, (although almost exactly), an hour out. The real time is an hour later. That is because the cameras have not been adjusted for daylight saving.
There was in my view no reason to reject Mr Adams’s evidence on that topic but there is evidence to support him. Mr Adams said that while the CCTV cameras have not been adjusted for daylight saving, the computer recording of the activity in the units was adjusted, I assume automatically.
The evidence from which the inference can be drawn that both the CCTV cameras and the logs worked properly, and that there is a difference of an hour between the two caused by the daylight saving discrepancy, is demonstrated by the interrelation between the two instruments at times when R is said to attend Safeco and take access to unit 508, the one rented by him.
On each of the 9th, 12th, 13th, 15th and 16th a man said to be R is seen on the CCTV footage arriving at the units in a car, having come through the front gate. The man, alone on the 9th, 13th and 16th, but in company with another man on 12th and 15th, approaches the keypad of loading bay number two, the loading bay nearest to the stairs going up to unit 508. On the 9th and 13th the CCTV time is shown as 4:50 pm and 4:15 pm respectively. However the roller door to the loading bay is closed, requiring the man to open it by using the keypad. Mr Adams said that the roller doors were left open during office hours but they were closed at around 5:30 pm. The fact that the roller door was closed on 9th and 13th October suggests that the time of the entry by the man was after 5:30 pm, not before. That is consistent with there being one hour time difference between the CCTV camera and the activity log, with the activity log being the correct one.
The CCTV does not show the man actually going to unit 508. However on each of the five occasions the man is shown entering the loading bay, coming up the stairs and going in the direction of unit 508. On each occasion the activity log shows unit 508 being opened. It shows that unit being opened but the alarm does not go off. Each time the PIN code for unit 508 has been entered so as to disarm the alarm. On each occasion the man is seen entering the warehouse and the upper floor on his own, and on two occasions in the company of another man. No one else is seen on the footage. I make those observations without drawing any inference about the identity of the man.
In my view the inference is overwhelming that the CCTV footage and the activity log were capable of producing the evidence they purport to produce and they produced it accurately, consistent with the time difference explained by Mr Adams.
I distinguish the case of R v Edwards[13] cited by Mr Edwardson. In that case a conviction for manslaughter was overturned because of an inaccuracy in a time stamp on CCTV footage. In this case the actual time of the men moving the containers on 15 October is not critical. It is the fact of them moving the containers that is critical and, it might be said, the date. There is in my view no reason whatsoever to doubt the reliability of the date. In this case two quite separate and independent instruments have recorded access to the relevant units at the same time. That establishes their reliability.
[13] [2007] SASC 202
A further challenge to the CCTV and logs is that the downloading of each has been unfairly selected. Mr Adams provided both items of data at the request of the police. He was not asked to provide all the CCTV footage or all the activity logs. The defence submission is that Mr Adams should have been asked to do so, so that access by other people could be considered. I should say that the CCTV footage would have been recorded over some weeks after the relevant footage was downloaded and I assume that the logs are likewise no longer available.
In my view that submission is untenable. While that criticism can be made when challenging the weight of the evidence it does not detract significantly from the probative weight of the evidence which has been produced. The weight is for the jury to determine.
Evidence of Ms Wilby
I turn to the challenged evidence of Ms Wilby. The impugned evidence of Ms Wilby is that on 13 October 2012 Nasradden rented unit 521, the unit where the drugs were found on 16 October. When speaking to Ms Wilby Nasraddden said he wanted a unit close to his friend. Initially he said he did not need a PIN number for his unit because he was going to be taking access with his friend. The challenge is to the relevance of the conversations and to its being inadmissible hearsay against R.
In my view the relevance of the conversation is patent. It is true that Ms Wilby is unable to remember the name of Nasradden’s friend or whether she was even given a name. She cannot remember the number of the friend’s unit but she says she was given one because she applied her mind to finding a vacant unit near the number she was given. She is shown on CCTV taking Mr Nasradden to the second level units where units 508 and 521 are located. Although she and Nasradden are shown going in the direction of unit 521, they are not shown going down the aisle where 508 was located.
There is however evidence from which it can be inferred that Nasradden sought a unit near that of R. The two were friends. R was a witness to Nasradden’s marriage ceremony in 2009. There were intercepted telephone calls between them on 4 July, the day before R rented unit 508, and 12th and 13th October the day before, and the day when Nasradden hired unit 521.The bucket and basket inferentially containing the drugs were moved from the direction of unit 508 in the direction of 521 at around 8:30 pm on 15 October, the day Nasradden’s tenancy of unit 521 was to commence and the day before the drugs were located. Two men resembling the accused are seen moving the containers.
In my view the above material is sufficient evidence of the preconcert or agreement, for Nasradden’s words and actions in Ms Wilby’s presence to be admissible in proof of Nasradden’s joint enterprise with R. It is evidence admissible against R. See Tripodi v R[14] and Ahern v R[15].
[14] (1961) 104 CLR 107.
[15] (1988) 165 CLR 87 at 93.
DNA
There is DNA evidence linking R with items found at his house on 19 December as well as on tea towels found in the larger wicker basket in the unit 521 on 16 October. I admitted the DNA evidence relating to the tea towels but made no ruling on the DNA evidence located on the 19 December. The admissibility of that evidence will be for the trial judge determining the severed count 4.
I turn to the DNA found on the tea towels. The tea towels were found in the larger wicker basket in unit 521. The drugs were found in the smaller basket. A man is seen carrying what looks like the two baskets on 15 October inferentially between units 508 and 521. Evidence was given on the voir dire by AFP Crime Scene Investigator Stephanie Styles and AFP Senior Forensic Biologist Jennifer Stone. The thrust of the challenge to the admissibility of the DNA evidence is that the evidence is not capable of being circumstantial evidence linking the accused with the drugs. There is such a risk of contamination of the tea towels, or secondary or subsequent transfer of the accused’s DNA to the tea towels, that the presence of R’s DNA on the tea towels should be excluded. Even if the evidence is strictly capable of being circumstantial evidence of the accused’s association with the drugs, the slight probative weight of the evidence is outweighed by the prejudicial effect, such that it should be excluded in the exercise of the Christie[16] discretion. There is a danger of the ‘CSI effect’ that is, the jury may give to the DNA evidence greater weight than it is truly capable of bearing.
[16] [1914] AC 545
I deal first with the facts upon which the challenge is based. It appears on the video footage of the police search of unit 521 on the 16 October that the officers touching the exhibits, including the tea towels, were wearing gloves. However it may be that they may have donned those gloves before they entered the warehouse. It also appears that they did not change their gloves during the search of the unit and the seizure of the exhibits found inside it, including the drugs and tea towels.
The analyst spoke of the importance of changing gloves between contacts with different exhibits.
There are several possible mechanisms by which contamination of the tea towels might have occurred. If the police had put on their gloves before they entered the warehouse they might have touched the stair rails on the way up to the unit 521. R might have shed some DNA on those stair rails and there may have been a secondary transfer to the gloves and the tertiary transfer to the tea towels. In the course of handling some of the exhibits in the unit there might have been a secondary transfer of R’s DNA to the gloves then tertiary transfer to the tea towels. Mr Edwardson referred to cases where DNA evidence had been excluded.
Before returning to those cases it is convenient to consider some significant features of the DNA evidence. The first is that before the DNA evidence can become relevant as a piece of circumstantial evidence implicating R, it must have some capacity rationally to affect the assessment of a fact in issue DPP v Tom Massey[17].
[17] [2017] VSCA 38 at [98].
DNA evidence has the capacity to be given more weight by jurors that it is capable of bearing- the so called ‘CSI effect’ see DPP v Dan Wise[18]. In such circumstances the prejudicial effect of DNA evidence may outweigh its probative weight, calling for its exclusion on that ground.
[18] (2016) VSCA 173 at [17].
Finally the probative weight of DNA evidence cannot be enhanced by other pieces of circumstantial evidence. No other inculpatory evidence adds to the relevance or reliability or weight of the DNA evidence.
Mr Edwardson cited cases in which the DNA evidence had been excluded, either because it was considered irrelevant or because its probative weight was outweighed by its prejudicial effect. Those cases included R v G Z[19], R v Joyce[20], R v Ali[21], DPP v Dan Wise[22] and DPP v Tom Massey[23].
[19] [2015] ACTSC 229.
[20] (2002) 173 FLR 322.
[21] [2015] NSWCCA 72.
[22] [2016] VSCA 173.
[23] [2017] VSCA 38.
In my view a consideration of those cases does not assist in the assessment of the weight of the DNA evidence in this case. The facts of each case are different. In the present case the presence of the accused’s DNA on a tape lift taken from the tea towels in the larger wicker basket is of sufficient probative weight to be a piece of circumstantial evidence of R’s connection with the tea towels or other exhibits in the unit. Compared to the other evidence linking R to the unit and the larger wicker basket, the DNA evidence may be less significant but it is of some appreciable weight. The jury will have to bear in mind the criticisms that are made of the possibility if secondary and tertiary transfer but those are matters within their province as fact finders. I rule that the DNA evidence is admissible against R.
Search
Application is made by both accused to exclude the evidence of the fruits of the SAPOL search of unit 521 on 16 October 2012. The search is said to be unlawful.
Five witnesses gave evidence on the voir dire on this topic – Messrs Adams and Steen from Safeco, Federal Agent Simon Warwick, SAPOL officer Daniel Gillan and former SAPOL officer Talei Bentley. It is appropriate to say something about events before the witnesses, particularly the two civilian witnesses, gave evidence.
On Friday 1 September 2017 there was on foot a public interest immunity claim by the AFP in respect of, inter alia, the identity of the person who alerted the AFP to the movement of the containers at Safeco on 15 October. I determined I should not hear that claim. Another Judge was to hear that claim on Monday 4 September. On 4 September the claim was abandoned because the identity of the informant being unexpectedly disclosed. The informant was Mr Adams, the CEO of Safeco. The solicitors for R had subpoenaed the attendance of the witnesses they sought to question on the voir dire. Mr Abbott said he proposed to call the witnesses and examine them. He foreshadowed the order in which he wanted the witnesses to be called – Adams, Steen, Warwick, Gillan and Bentley.
Mr Abbott called Mr Adams and examined him in chief. I do not know when it came to Mr Adams attention that the public interest immunity claim seeking to protect his identity had been abandoned. Understandably I think, he was somewhat guarded in the course of his evidence.
Adams said that during what I took to be the morning of the 16 October 2012 Mr Steen told him that he was getting after hours calls from silent alarms going off. Either or both of units 508 or 521 might have been mentioned. That caused Adams and Steen to consult the logs and CCTV footage. Adams saw the CCTV footage showing two men moving the containers on 15 October. He saw on the logs the contemporaneous access to units 508 and 521. As a result Adams rang the number of an AFP officer who had left a card at Safeco following some other inquiry. Adams was questioned closely about what alarms had been set off and when. He was questioned about what he told the police. He had difficulty remembering aspects of these topics.
What is clear is that Adams asked the AFP officer whether the police were ‘interested in’ either of the accused. Adams identified the accused as the tenants of units 508 and 521. The officer told him that the police were not interested in those names, or at least that that officer was not aware of any interest.
At about 1:30 pm on 16 October AFP Warwick rang Adams and said that police were interested in R, although they knew nothing about Nasradden. In fact as part of AFPL operation Mellum, R had been the subject of surveillance for some months.
Warwick said something to the effect that they would send local police to have a look. Adams denied that he told the police that he suspected drugs were being moved between units 508 and 521. He also denied ever looking in unit 508 and telling the police that that unit was now empty. Those two denials assume some importance in R’s contention that the police were never given information upon which they could form a reasonable suspicion that drugs were to be located in unit 521.
The next witness was Mr Steen. He said he had difficulty remembering details of what happened on 16 October. Mr Powell examined him and Mr Abbott cross-examined. Mr Steen’s evidence really only informed the basis of Adams enquiries which in turn led to the telephone call to the police.
Warwick was the next witness. He rang Adams at about 1:30 pm on 16 October when he learned that R’s name had been mentioned by an informant. He said Adams told him that he suspected drugs had been moved from unit 508 to 521 the night before. Warwick made no note in his notebook about Adams saying that (he put it in a later memo) but he was adamant that Adams had said it. I pause to say that I think it is plain that, despite Adams’s denial and Warwick’s absence of a note, it is highly unlikely that Adams would have telephoned the police simply to tell them that someone was taking access to units after hours, even if the alarm was going off. I think it is inherently much more likely that Adams rang the police because his observations lead him to suspect that the tenants of units 508 and 521 were storing drugs. I accept Warwick’s evidence that Adams told him of that suspicion and the grounds for it. Adams had seen two men carrying large containers between units 508 and 521 the previous night. He had seen it on the CCTV and he had noted the access to each unit on the logs. Warwick’s involvement in operation Mellum amplified the suspicion of Adams, at least as it related to R. Warwick says that during the phone call Adams told him that unit 521 was rented by Nasradden and that when Nasradden rented the unit on 13 October he asked that his unit be situated close to that of his friend. Warwick was also told that one or both of the units were being accessed at night at odd times. The log of unit 521 shows access to that unit after hours, although not particularly late, on 9 and 12 October as well as the 8:30 pm access to both units on 15 October. The alarm only went off once at unit 508 but it went off on unit 521 on 15 October. The occasion when the alarm went off on unit 508 was at 1:01 pm on 16 October, just before the telephone call between Adams and Warwick at 1:30 pm. Who took that access remains unexplained but I think the most likely explanation is that it was effected by Adams. Adams denies that, but Warwick says that when he spoke to Adams he was told that unit 508 was ‘now empty’. In examination in chief Adams said that if he had told Warwick that he must have learned it from SAPOL officers. He thought SAPOL officers had attended Safeco during the day. In cross examination by Mr Powell he was unsure whether SAPOL officers had in fact attended Safeco during the day.
The defence hypothesis is that AFP officers unlawfully directed SAPOL officers to conduct the search of unit 508 at 1:01 pm. SAPOL officers denied that. Certainly they found unit 508 empty when they searched it at 8:40 pm or thereabouts.
The defence submitted I should disbelieve Warwick’s evidence about what he says Adams told him. I should conclude that in so far as he has made any record of critical communications from Adams he has reconstructed them. Where he has not made a note I should not find that that communication took place. I reject that submission. While Warwick’s notes do not reflect everything he says he was told by Adams I see no reason to disbelieve him. An important reason for accepting his evidence is that, despite Adams’s denials in what I describe is his understandably guarded responses in the witness box, I do not think Adams would have telephoned the police in the first place if he had not entertained suspicions that drugs or drug related materials had been moved from unit 508 to 521 on the night of 15 October.
I find that the information Warwick received from Adams, combined with his own knowledge of R, was sufficient to found a reasonable suspicion that drugs and/or drug related evidence would be found in unit 521 on 16 October.
Notwithstanding that finding two further questions must be answered –
4Was it lawful for the AFP officers to ‘utilise’ SAPOL officers to conduct the search?
5Did SAPOL officers form a suspicion based on reasonable grounds that illicit material would be found in unit 521?
Warwick said that he decided not to execute a warrant pursuant to s 3E Crimes Act because he did not want to compromise operation Mellum which involved a number of suspects. He decided to pass the information he had to SAPOL officers for their consideration.
The defence submission is that that motive is a misrepresentation. The real reason for Warwick not seeking issue of s 3E warrant is that he did not have sufficient information to satisfy the requirements for the obtaining of such a warrant. That hypothesis involves the propositions that while Warwick was willing to misrepresent and exaggerate the reasons for his suspicions to this court he was not willing to exaggerate and misrepresent them to the officer who had authority to issue a s 3E warrant.
I accept Warwick’s evidence about his reasons for preferring to avoid if he could, seeking s 3E warrant.
There was a further challenge to the propriety of Warwick referring the matter to SAPOL. It is suggested that Warwick directed SAPOL to conduct the search. Warwick accepts that he said to Adams that he ‘was sending’ SAPOL officers to ‘have a look at’ the units.
Both Gillan, to whom Warwick first spoke, and Bentley denied they were directed in any way to conduct the search. While Warwick and three other AFP officers attended SAPOL premises at about 4:20 pm on 16 October to brief Bentley and other SAPOL officers, both Warwick and Bentley deny any improper coercion. I accept their evidence.
The final question to be answered is whether Bentley had sufficient information upon which she could form a suspicion on reasonable grounds that drugs might be found in unit 521.
The defence undertook a close analysis of Warwick’s and Bentley’s notes, and those of the intermediary Gillan, in support of the contention that I should find that Bentley did not have reasonable grounds for forming the requisite suspicion.
A further basis for that contention was that it was suggested that Bentley’s contacting surveillance resource personnel within SAPOL before the briefing suggested that she never had the requisite suspicion about the likely presence of drugs. Rather she was merely proposing to install a surveillance device in unit 521. I accept her evidence on that topic. She said that she was not sure whether she would need any assistance from the surveillance personnel but she wanted to check their availability before five o’clock because after that she would not be able to contact them.
Notwithstanding that the notes of Bentley do not set out all the information I have found that Warwick possessed, and notwithstanding that Bentley said that she relied in the witness box entirely on her notes to recollect what she was told, I find that Warwick told her all he knew about the accused. I see no reason why he would not have done so. It was in his interests to provide Bentley with as much information as he could, both to enable her to decide whether she would use her general search warrant to conduct the search and to actually conduct the search itself.
I find that Bentley was told the following information:
·That the two named accused were suspected by an informant, and by Warwick, to have moved drugs and/or drug related evidence from unit 508 to 521 the night before;
·That R had been under AFP surveillance for suspected drug trading for some time;
·That Nasradden had two days before sought to hire a unit close to that of his friend;
·That unit 521 was secured by a combination lock and that 508 was now empty.
That information in my mind view was sufficient to engender, and did engender, in Bentley a reasonable suspicion that drugs and/or drug evidence might be found in unit 521. I find that Bentley’s execution of her general search warrant at Safeco on 16 October 2016 was lawful. The search was lawful and there is no discretionary reason to exclude the evidence uncovered. I bear in mind the requirements of the suspicion that must be entertained before a general search warrant can be executed (see R v Nguyen[24]).
[24] (2013) 117 SASR 432 at [21]-[22].
Lock
The accused sought to have excluded evidence tending to link R with a lock securing unit 521. The evidence is as follows.
The combination lock on unit 521 is said to be indistinguishable from locks imported from China and sold on EBay by Mr Hsu, an interstate trader in locks and other merchandise.
Mr Hsu runs an online business called ibazaar. Police discovered documents relating to the sale of a lock on 15 September 2012, just over a month before the search of unit 521.
There are three documents discovered.
6An eBay sales record produced by Mr Hsu’s business recording a sale of combination lock to a purchaser described as R – Swarvie Saint whose given address was a shop in Regent Arcade Adelaide.
7A PayPal transaction document recording the payment of $24.75 on 15 September 2012 for a lock by Alice Wilson, the partner of R. The shipping address is the same of that on the eBay record.
8An Australia Post tracking document recording the delivery of an item to Beverly South Australia on 19 September 2012. The tracking number on the Australia Post document appears on the eBay sales record.
In my view it is plain that the three documents are business records of eBay, PayPal and Australia Post respectively and also business records of Mr Hsu. There is no further proof required of how the documents were generated. Mr Powell indicated that he would be calling Mr Hsu as a witness.
A further objection was taken to what the defence suggested would be the evidence of Mr Hsu ‘identifying’ a lock shown to him by the AFP as the one he sold. That objection failed when it was pointed out that Mr Hsu would be presented in the witness box with the lock taken from unit 521 and he would be asked if he could comment on any similarities or dissimilarities. It would then be for the jury to make what they would of his evidence. Mr Hsu would not be identifying the lock. The jury would evaluate the evidence.
In the event Mr Hsu closely inspected the lock from unit 521 when it was shown to him in the witness box and he said that the number and colour of screws on the lock were the same as those on locks he was selling in 2012.
While it must be acknowledged, and Mr Hsu acknowledged, that such locks were mass-produced in China, the evidence was highly probative. It suggested a persuasive link between the lock on unit 521 and R. I admitted the three documents.
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