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R v Shah (No 1)

R v Shah (No 1)

Case [2022] NSWDC 707 5 April 2022

Criminal Liability

Admissibility of Evidence

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Shah (No 1) [2022] NSWDC 707
Hearing dates: 29 – 31 March
1, 4 – 5 April 2022
Date of orders: 5 April 2022
Decision date: 05 April 2022
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [46] Evidence relevant and admissible. Some messages and communications subject to objection voluntarily excised by the Crown. Direction to be given as to non-propensity reasoning and appropriate relevance.

Catchwords:
CRIME — Drug offences — Possess prohibited drug — Cocaine
EVIDENCE — Criminal Proceedings — Admissibility — Tendency and Coincidence Evidence — Involvement in Drug trafficking — Propensity to Commit Crime

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Falzon v The Queen [2017] VSCA 74
HarrimanvThe Queen [1989] HCA 50; 167 CLR 590 and 88 ALR 161
Malubel Pty LtdvElder (1998) 88 FCR 242; (1998) 103 A Crim R 568
ParkervChurchill (1985) 9 FCR 316
PetersvThe Queen [1998] HCA 7; 192 CLR 493
RvAN [2000] NSWCCA 372; 117 A Crim R 176
RvBall [1911] AC 47
Rv Dennis Bauer (a pseudonym) [2018] HCA 40
RvGale; RvDuckworth [2012] NSWCCA 174
R v Garner (1963) 81 WN (Pt1) (NSW) 120)
RvHissey (1973) 6 SASR 280
RvMatonwal & Amood [2016] NSWCCA 174
SultanavThe Queen (1994) 74 A Crim R 27
The QueenvFalzon [2018] HCA 29
Thompson and Wran v The Queen (1968)
WilsonvThe Queen [1970] HCA 17; 123 CLR 334

Category: Procedural rulings
Parties: Crown
Abdul Malik Shah (Offender)
Representation:
Counsel:
B Stevens (Crown)
S Orman-Hales (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2019/00162030
Publication restriction: Nil

JUDGMENT

Abdul Malik Shah has been arraigned on one count of attempting to possess a border control drug; namely, cocaine. In advance of empanelling a jury, the Court has been asked to rule on a number of pre‑trial applications to exclude evidence otherwise proposed to be relied upon by the Crown. The various applications have proceeded over several days. I do not propose to go into minute detail regarding all aspects of the Crown case, but an overview of the substance of the allegation is a necessary prerequisite. A box with cocaine secreted in packages within the four walls of the cardboard box was detected at the International Mail Centre in Sydney on 13 May 2019. The box contained colourful pieces of material which were similar to shawls or wraps. The cocaine secreted within the actual cardboard packaging, comprising the walls of the box, was in due course ascertained to be slightly more than 400 grams gross with an average purity of 83%. This yielded approximately 332 grams of pure cocaine.
The packages of cocaine were removed and the box reconstituted for delivery. It had been consigned to an addressee, Abdul Sheh, at an address 4/1089‑1101 Canterbury Road, Wiley Park,…

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 Shah (No 1)

Details

AGLC: R v Shah (No 1) [2022] NSWDC 707
Case: [2022] NSWDC 707
Decision Date: 05 April 2022

CaseChat Overview and Summary

The case of R v Shah (No 1) involved an appeal by the respondent, Shah, against the decision of the primary judge to admit evidence of propensity in the form of text messages and emails. The respondent was charged with possessing a prohibited drug, cocaine. The legal issues before the court centred on the admissibility of this evidence under the provisions of the Evidence Act 2008 (Cth), particularly in relation to its relevance and the danger of unfair prejudice. The court had to determine whether the evidence of propensity could be admitted under section 97 of the Act and whether it should be excluded under section 137.

The court examined the text messages and emails in question to assess their probative value and the risk of prejudice. It concluded that the evidence was relevant to the respondent's propensity to engage in drug trafficking. However, it was also necessary to consider whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. The court found that while the evidence had some probative value, the danger of unfair prejudice was not so significant as to warrant exclusion. The court also noted that the Crown had voluntarily excised some of the contentious messages and communications, which helped mitigate the risk of prejudice.

In light of the above, the court held that the evidence was both relevant and admissible. It directed the trial judge to give an appropriate direction to the jury regarding the non-propensity reasoning and the relevance of the evidence. This direction was intended to ensure that the jury would not misuse the evidence by inferring a propensity to commit the offence on the basis of the propensity evidence alone. The court's decision upheld the trial judge's ruling to admit the evidence, subject to the Crown's excision of some messages and the appropriate directions to the jury.

Orders

Orders of the court

At [46] Evidence relevant and admissible. Some messages and communications subject to objection voluntarily excised by the Crown. Direction to be given as to non-propensity reasoning and appropriate relevance.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Shah (No 1) [2022] NSWDC 707

Most Recent Citation

Shah v The King [2024] NSWCCA 113

Cases citing this decision · 1 of 1 shown

Shah v The King
[2024] NSWCCA 113 Para 8

…rtains to a ruling of 5 April 2022 of the learned trial judge that certain coincidence evidence would be admitted over objection: see R v Shah (No 1) [2022] NSWDC 707 at [11]-[15].…

View all 1 citing cases →

Cases cited in this decision · 15 of 15 shown

R v Bauer
[2018] HCA 40 Para 15

…It is important to note, as the High Court did in R v Dennis Bauer (a pseudonym) [2018] HCA 40, that prejudice does not include the legitimate capacity of evidence to inculpate an accused. The jury will be directed not to use evidence as a form of tendency reasoning, but I propose that the evidence should be adm…
R v Falzon
[2018] HCA 29 Para 43

…The High Court in The Queen v Falzon [2018] HCA 29, a decision of the Full Court, Kiefel CJ and their Honours Bell, Keane, Nettle and Gordon JJ, cited the observations of Gleeson CJ in Sultana with approval. The matter before the High Court in Falzon related to the finding of in excess of $120,000 cash at the re…
Falzon v The Queen
[2017] VSCA 74 Para 43

…mediate court after trial, had quashed the conviction and determined that the evidence of the cash should not have been admitted ( Falzon v The Queen [2017] VSCA 74). The dissenting judgment of Whelan JA was that the finding of the cash was admissible as an item of circumstantial evidence. That, in conjunction wi…
R v Matonwal & Amood
[2016] NSWCCA 174 Para 12

…Bathurst CJ reviewed the relevant authorities in relation to the admissibility of coincidence evidence in R v Matonwal & Amood [2016] NSWCCA 174, and made particular reference to the steps for determining the admissibility of coincidence evidence, which had been previously outlined by the Court in R v Gale; R v Duck…
R v Gale; R v Duckworth
[2012] NSWCCA 174 Para 12

…ce to the steps for determining the admissibility of coincidence evidence, which had been previously outlined by the Court in R v Gale; R v Duckworth [2012] NSWCCA 174 at paras 30 to 31. I do not propose to set out those paragraphs in this judgment. The essence of the contest in the present trial will be the state o…
R v AN
[2000] NSWCCA 372 Para 20

…r relationship or context in different types of cases, often involving sexual allegations and the present situation. As Kirby J pointed out in R v AN [2000] NSWCCA 372; 117 A Crim R 176, at para 46:…
Malubel Pty Ltd v Elder
[1998] FCA 1305 Para 21

…ication relating to the search warrant in those proceedings and which approach was confirmed by the Full Court (Nicholson, Burchett and Madgwick JJ), [1998] FCA 1305. I should observe that while D B McGovern of junior counsel, as he then was, was successful in getting an interim injunction in chambers from Kirby J…
Peters v the Queen
[1998] HCA 7 Para 21

…on was in due course refused by the High Court. In that the transcript of the application for special leave, reference was made to Peters v The Queen [1998] HCA 7; 192 CLR 493 and I note the observations of the High Court in those proceedings. I decline to set aside the search warrant.…
Sultana v The Queen
[1995] HCATrans 123 Para 40

…In Sultana v The Queen (1994) 74 A Crim R 27, Gleeson CJ, as his Honour then was in this jurisdiction, dealt with a challenge to conviction based upon the admission of a number of items which suggested that the appellant was an established drug dealer.…
Harriman v the Queen
[1989] HCA 50 Para 27

…A particular passage from McHugh J in Harriman v The Queen [1989] HCA 50; 167 CLR 590 and 88 ALR 161, was adverted to by Kirby J.…
Parker v Churchill
[1986] FCA 90 Para 21

…n the Crown's written submissions, in which the power to sever invalid portions of a warrant, which had been identified earlier in Parker v Churchill (1985) 9 FCR 316, was applied by Moore J in the first instance application relating to the search warrant in those proceedings and which approach was confirmed by the…
Parker v Churchill
[1985] FCA 576 Para 21

…im R 568, set out in the Crown's written submissions, in which the power to sever invalid portions of a warrant, which had been identified earlier in Parker v Churchill (1985) 9 FCR 316, was applied by Moore J in the first instance application relating to the search warrant in those proceedings and which approach was confir…
Wilson v the Queen
[1970] HCA 17 Para 32

…The consideration of the force of logic also underpinned the decision of the High Court in Wilson v The Queen [1970] HCA 17; 123 CLR 334, where Barwick CJ said at 339:…
Thompson and Wran v The Queen
[1968] HCA 21

…973) 6 SASR 280 R v Matonwal & Amood [2016] NSWCCA 174 Sultana v The Queen (1994) 74 A Crim R 27 The Queen v Falzon [2018] HCA 29 Thompson and Wran v The Queen (1968) Wilson v The Queen [1970] HCA 17; 123 CLR 334 Category: Procedural rulings Parties: Crown Abdul Malik Shah (Offender) Representation: Counsel: B Stevens (Crown) S Orman-…
[1911] AC 47
[1911] AC 47 Para 31

…I should indicate that his Honour McHugh J in Harriman went on to deal with R v Ball [1911] AC 47, which his Honour said:…

Legislation cited in this decision · 1

Evidence Act 1995 (Cth)
1 mention

Medium Neutral Citation:	R v Shah (No 1) [2022] NSWDC 707
Hearing dates:	29 – 31 March 1, 4 – 5 April 2022
Date of orders:	5 April 2022
Decision date:	05 April 2022
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [46] Evidence relevant and admissible. Some messages and communications subject to objection voluntarily excised by the Crown. Direction to be given as to non-propensity reasoning and appropriate relevance.
Catchwords:	CRIME — Drug offences — Possess prohibited drug — Cocaine EVIDENCE — Criminal Proceedings — Admissibility — Tendency and Coincidence Evidence — Involvement in Drug trafficking — Propensity to Commit Crime
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Falzon v The Queen [2017] VSCA 74 HarrimanvThe Queen [1989] HCA 50; 167 CLR 590 and 88 ALR 161 Malubel Pty LtdvElder (1998) 88 FCR 242; (1998) 103 A Crim R 568 ParkervChurchill (1985) 9 FCR 316 PetersvThe Queen [1998] HCA 7; 192 CLR 493 RvAN [2000] NSWCCA 372; 117 A Crim R 176 RvBall [1911] AC 47 Rv Dennis Bauer (a pseudonym) [2018] HCA 40 RvGale; RvDuckworth [2012] NSWCCA 174 R v Garner (1963) 81 WN (Pt1) (NSW) 120) RvHissey (1973) 6 SASR 280 RvMatonwal & Amood [2016] NSWCCA 174 SultanavThe Queen (1994) 74 A Crim R 27 The QueenvFalzon [2018] HCA 29 Thompson and Wran v The Queen (1968) WilsonvThe Queen [1970] HCA 17; 123 CLR 334
Category:	Procedural rulings
Parties:	Crown Abdul Malik Shah (Offender)
Representation:	Counsel: B Stevens (Crown) S Orman-Hales (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2019/00162030
Publication restriction:	Nil