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 2022Date 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:
Solicitors:
B Stevens (Crown)
S Orman-Hales (Offender)
Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)
File Number(s): 2019/00162030 Publication restriction: Nil
JUDGMENT
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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.
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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,…
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- AGLC
- R v Shah (No 1) [2022] NSWDC 707
- Case
- [2022] NSWDC 707
- Decision Date
CaseChat Overview and Summary
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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