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R v R & Nasradden

R v R & Nasradden

Case [2017] SADC 111 29 September 2017

Drug Trafficking

Controlled Substances

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v R & Nasradden

Details

AGLC: R v R & Nasradden [2017] SADC 111
Case: [2017] SADC 111
Decision Date: 29 September 2017

CaseChat Overview and Summary

The appellants were jointly charged with trafficking in a controlled drug and pre-trafficking in a controlled precursor. The appellants sought to sever the pre-trafficking and money laundering charges from the trafficking charges. The application was refused by the primary judge. The appellants appealed against the decision to refuse the severance of counts. The appellants submitted that the counts should be severed due to the prejudicial effect of the pre-trafficking and money laundering charges on the trial of the trafficking charges. The appellants submitted that evidence of the pre-trafficking and money laundering charges would be used to establish intent and knowledge to traffic in a controlled drug and would be prejudicial and confusing. The Crown submitted that the charges were part of a single course of conduct and that the evidence of the pre-trafficking and money laundering charges was relevant to the trafficking charges. The Crown submitted that the evidence of the pre-trafficking and money laundering charges would not be prejudicial to the appellants and that the trial judge would be able to direct the jury to only consider the evidence for the purpose it was adduced. The court held that the pre-trafficking and money laundering charges were properly joined with the trafficking charges. The court held that the evidence of the pre-trafficking and money laundering charges was relevant to the trafficking charges and that the prejudicial effect of the evidence of the pre-trafficking and money laundering charges was not such that a fair trial could not be had. The court held that the primary judge was correct to refuse the severance of counts.

The appeal was dismissed. No orders as to costs.

Orders