(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Stanley)
21 October 2013
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE
Appeal against conviction for trafficking in ecstasy - drugs found concealed in gutter of house adjacent to appellant's - plastic zip lock bags and "tick lists" found at appellant's house and his mobile telephone had SMS messages stored on it which prosecution alleged were referable to sales of drugs - whether the bags, lists and SMS messages were items of "discreditable conduct" within the meaning of s34P Evidence Act 1929 (SA) - whether the evidence was properly admitted - whether the trial judge had complied with the requirements of s 34P in admitting the evidence - whether the relevance of the evidence relied on "a particular propensity or disposition" in the appellant - whether the directions as to use and misuse of the evidence were adequate - whether the trial judge was required by s 32R(2) to direct that conclusions about this evidence were essential to the process of reasoning leading to guilt.
Held: appeal dismissed. Only the lists and SMS messages were discreditable conduct - all three items were relevant and admissible, being relevant to proof of possession and intention to sell - the lists and SMS messages suggested the appellant was in the business of dealing in drugs and, it followed, showed that he had a disposition or tendency to deal in drugs - although the evidence of those two items was not (ostensibly) admitted for such a purpose that would not preclude that use - the directions given going to the proper use of the evidence were appropriate and complied with s 34R(1) - the warning against propensity reasoning tended to contradict that direction and was not necessary, but could only have favoured the appellant - appropriately, no direction under s 32R(2) was given.
Court of Criminal Appeal: Sulan, Vanstone and Stanley JJ
SULAN J: I would dismiss the appeal. I agree with the…
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 Soteriou
Sign in free to access the full text
Details
AGLC
R v Soteriou [2013] SASCFC 114
Case
[2013] SASCFC 114
Decision Date
CaseChat Overview and Summary
This case concerned an appeal against a conviction for possessing controlled drugs for the purpose of trafficking. The prosecution's case relied on inferences drawn from evidence including text messages extracted from the appellant's mobile telephone, notebooks containing lists of names and numbers, and a large quantity of plastic resealable bags found at the appellant's home. Further evidence included 33 tablets of 2C-I and 153 tablets of TFMPP found in a plastic bag within a camera bag located in a neighbouring property, with the appellant's DNA found on the camera bag. The appellant denied possession of the camera bag and drugs, explaining the notebooks and plastic bags as relating to his legitimate businesses and personal use. The appeal was heard by Sulan, Vanstone, and Stanley JJ.
The central legal issues before the court were whether the evidence of the text messages, notebooks, and plastic bags constituted "discreditable conduct" within the meaning of section 34P of the Evidence Act, and if so, whether it was properly admitted. The appellant argued that this evidence did not suggest discreditable conduct and therefore did not fall within the ambit of section 34P. Furthermore, the appellant contended that if the evidence did fall under section 34P, the trial judge erred by failing to address the specific requirements of the section and by providing inadequate directions to the jury regarding the use and misuse of the evidence, particularly concerning its essential role in the reasoning process leading to a finding of guilt.
The Court of Appeal, in dismissing the appeal, found that only the evidence of the notebooks and text messages fell within the ambit of section 34P as discreditable conduct evidence. The court reasoned that the plastic bags themselves were not discreditable conduct evidence as their continued possession by the appellant suggested they had not been used in the course of a drug trade. The court affirmed that the evidence was properly admitted, satisfying the requirements of section 34P, and that the trial judge's directions regarding its use were appropriate. The court noted that while a propensity warning was given, it was not required and could only have favoured the appellant.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons which follow I have decided that only the evidence of the notebooks and text messages fell within the ambit of s 34P. It is not necessary for this Court to analyse the reasons given by the trial judge for admitting that evidence since the issue is whether it was properly admitted. In my view the evidence was properly admitted as being “discreditable conduct”. In summing up the judge correctly identified and explained the relevance of the evidence. He also gave a propensity warning which, in my opinion, was not required. I would dismiss the appeal.Background On 2 February 2011 police attended at the home of the appellant. Within the house police located a mobile telephone from which text messages were extracted, notebooks containing handwritten entries and a large number of plastic resealable bags. Examples of the text messages were as follows:Incoming: how much can you pay before Thursday Jhon?Incoming from Cam:I’m coming back from victor on Saturday, i sold the rest yesterday so I have 200 to give you … Incoming: from“Berry Chad” Hey mate what biscuits you got?The notebooks contained lists of names with corresponding numbers, often with amendments in the form of additions or subtractions. In at least one case an entry, referring to “Cam”, seemed to reflect a text message, being the second reproduced above. Inside the gutter of a neighbouring property police located a camera bag containing a plastic bag, within which were 33 tablets, referred to as 2C-I (count 1) and a plastic bag within which were 153 tablets referred to as TFMPP (count 2). The DNA of two individuals was found on the camera bag, one DNA profile matching that of the accused. The prosecution case relied on inferences available from all the evidence, on the basis of which it was suggested that the camera bag was in the possession of the appellant and that he possessed the two controlled drugs for the purpose of trafficking. The appellant gave evidence in his defence. He denied possession of the camera bag located in the gutter. He acknowledged that the mobile telephone belonged to him. He admitted that the notebooks contained some of his handwriting but asserted that the names and amounts were referable to monies owed to him by customers of his hairdressing and seafood businesses, as well as loans he had extended to friends. The appellant said that the plastic bags were his and that he used them for jewellery. He also acknowledged possessing plastic bags similar to those containing the drugs, which he used for his children’s lunches. Arguments on appeal. The appellant was represented upon the appeal (though not at trial) by Mr Moen. Mr Moen did not argue that all three items were inadmissible in the trial. Plainly they were strongly probative. However, he argued that the items were not such as to suggest that the appellant had been engaged in discreditable conduct and that they did not therefore attract the provisions of s 34P. Mr Moen further submitted that if, against his argument, the evidence did raise s 34P, then the judge had erred in failing to address the various requirements of the section. He noted that according to R v CCN [2013] SASCFC 44 at [29] it was necessary for the judge to consider each step of the s 34P process in relation to each charge. Mr Moen further argued that the directions in relation to the evidence were inadequate. In particular he argued that since the evidence was an “essential link in the process of reasoning leading to a finding of guilt” (s 34R(2) the judge was obliged to direct the jury that it was not to make use of the evidence unless the inferences arising from it were proved beyond reasonable doubt.
Evidence
Evidence Before The Court
It is convenient at this point to set out the terms of s 34P, 34Q and 34R.34P—Evidence of discreditable conduct(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—(a)cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and(b)is inadmissible for that purpose (impermissible use); and(c)subject to subsection (2), is inadmissible for any other purpose.(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—(a)the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.(4) Subject to subsection (5), a party seeking to adduce evidence under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).34Q—Use of evidence for other purposesEvidence that under this Division is not admissible for 1 use must not be used in that way even if it is relevant and admissible for another use.34R—Trial directions(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.(2) If evidence is admitted under section 34P and that evidence is essential to the process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted are established beyond reasonable doubt, and the judge must (whether or not sitting with a jury) give a direction accordingly.Was this discreditable conduct evidence I start with the question whether the three items of evidence were discreditable conduct evidence. In terms of s 34P(1) that question is: Did the evidence tend to suggest that the appellant had engaged in discreditable conduct … other than conduct constituting the offence? I agree with both counsel that the possession of the resealable plastic bags was not such evidence. Certainly the prosecution argued that the plastic bags were the tools of trade or paraphernalia or indicia of trading by a drug dealer – indeed there was some evidence from a police officer in this trial to that effect – but the very fact that the appellant still had possession of them indicated that they had not been used in the course of a drug trade. The subsection catches evidence suggesting that a defendant has, that is in the past, engaged in discreditable conduct; not that he might intend to do so in the future.
Decision
Reasons for decision
The fact that the propensity warning was given could only have favoured the appellant.Conclusion The evidence was properly admitted. It met the requirements of s 34P of the Evidence Act. The directions going to use were appropriate. The directions going to misuse were unnecessary but could only have favoured the appellant. I would dismiss the appeal. STANLEY J: I would dismiss the appeal. I agree with the reasons of Vanstone J.