R v Vera

[2007] NSWDC 91

CITATION:	R v Vera [2007] NSWDC 91
HEARING DATE(S):	02/04/07
JUDGMENT DATE:	4 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	See para 14.
CATCHWORDS:	Criminal Law - evidence - admissibility - take part in supply of drugs - telephone intercepts - relevance.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Evidence Act 1995
CASES CITED:	R v Derbas (1993) 66 A Crim R 327 R v Deng (1996) 91 A Crim R 81 DPP's Reference (No.2 of 1995) 65 SASR 508 Question of Law (No 1 of 1996) (1997) 92 A Crim R 364
PARTIES:	Regina Claudio Vera
FILE NUMBER(S):	06/11/0846
COUNSEL:	Mr E Balodis - Crown Mr G Grogin - Offender

JUDGMENT

Re Admissibility of Telephone Intercepts

1 The Prosecution brings a charge alleging that the accused “knowingly took part in the supply of not less than a large commercial quantity of cocaine” between the dates alleged. The charge is brought pursuant to s.25 (2) Drug Misuse and Trafficking Act 1985.

2 “Supply” is defined in s.3 of this Act and the meaning of “take part in” is set out in s.6 of the Act. Their relationship was discussed in R v Derbas (1993) 66 A Crim R 327 (at 329-30).

3 I accept for the purposes of this judgment that the Crown does not have to prove an actual supply and that preparation for “supply” may constitute “knowingly taking part in supply” (R v Deng (1996) 91 A Crim R 81 (at 95-96): DPP’s Reference (No. 2 of 1995) 65 SASR 508).

4 Objection has been taken, by the accused, to parts of two recorded telephone lawful intercepts sought to be tendered by the Crown. Both telephone conversations occurred on 14 January 2006, one at 11.01 pm, the other at 11.05 pm (conversations “A” and “B”). The seven conversations occur between 14 and 24 January 2006. I have excluded two specific parts of the second of such conversations, occurring at 11.05 pm on 14 January 2006. There is no incriminating evidence as such in conversation “A”, however the objection, as I understood it, was essentially concerned with its “relevance”, given the fact that it has the appearance of an innocent conversation so to speak. I note in relation to this matter that it is proposed by the accused to make admissions that he knew that the other participant in the telephone conversations (Johnny Kazzi) was a drug dealer, that the two men at various times were talking about “cocaine” and that he, the accused, had some association with the use of prohibited drugs.

5 With regard to tape “A”, the significance of it, as I understood the Crown’s position, was that it first of all “sets the scene” for later more incriminating conversations and secondly, its significance is enhanced by the fact that it occurs only a few minutes before a particular conversation specifically concerned with the supply, or proposed supply, of prohibited drugs. It, in its final terms, leads into the second telephone conversation.

6 The relevance of evidence is determined by the terms of s.55 Evidence Act 1995. I do not propose to set out that section beyond observing that on the basis that the conversation “A” sets the scene and has a temporal relationship with other more probative conversations, I would not regard the conversation as irrelevant. Furthermore, I see no unfair prejudice to the accused which would outweigh the probative value of the evidence, albeit slight (s.137 Evidence Act).

7 The second conversation (conversation “B”) is objected to in part, particularly the statement made by the accused at page 1 of the transcript of the conversation “CV - Well you know like we did last time”, as well as that portion of the conversation from where the accused says (at p.2 of the transcript) “Mate, err, mate it all depends last time I did fuckin’ three with, them pretty quick …” to (at page 3) “JK – They’ve got a chunk missin’ out of them.

8 CV – Alright”.

9 The objection is that this conversation involves representations by the accused that he has been involved in past supplies of prohibited drugs. It is submitted that this fact is irrelevant and even if relevant the probative value of the evidence is outweighed by its unfair prejudice to the accused. It should be pointed out that parts of the first conversation at the end appear to segue into the substance of the discussions about prohibited drugs in the second conversation which occurs a few minutes later.

10 By reference to Question of Law (No. 1 of 1996) (1997) 92 A Crim R 364, Deng and DPP’s Reference (No. 2 of 1995) the Crown says that the conversations objected to are admissible as they are relevant to establishing “the process” that includes the charged conduct. I do not accept that submission in relation to those admissions, if they be so, of past supplies, or a past supply, by the accused in this matter.

11 I do accept, as was implicitly accepted in Question of Law No. 1 (above), that past supplies or separate supplies may be part of “the process” of knowingly taking part in the supply of a prohibited drug the subject of a charge as arises in this matter. However in that judgment, the “facts” reveal that it was part of the Crown’s case that one accused’s “history of selling drugs” was relevant to the proof of guilt and this was not disputed. The details of that history however, are not recorded and one would assume there was greater particularity than available here. In order for the evidence to be relevant there must be sufficient particularity to relate those past events to the particular “process”, to use the term adopted by the learned Prosecutor, the subject of the charge. Otherwise, the evidence is simply evidence of “past bad character” not relevant and not admissible, unless relevant for “tendency” or “coincidence” purposes (ss.97, 98 Evidence Act 1995) or as permissible “contextual evidence”.

12 To understand the importance of the conversations objected to I have also taken into account other material in other conversations, including the reference by the accused to “burning bridges” in the last conversation recorded. That comment, in its terms, may be more “contemplative” than “historical”. It is equivocal at best. I have also taken into account what the Crown outlined to be the proposed evidence of Mr Messina, which may shed light upon matters referred to by the accused during the objected conversation, such as Kazzi’s reference to “some black … wrapping …” to which Mr Vera replied “OK, that’s the one, yeah”. It must be fairly said that in its terms not all of the objected material may, or potentially may, reveal past supply conduct. Other parts of the conversations objected to reveal evidence of the accused’s knowledge of Mr Kazzi’s methodology, without admission of past supply. This evidence is not only relevant to the issues in the case for determination as contended by the Crown, but also the accused’s relevant knowledge and intention to supply. This evidence has no unfair prejudice that outweighs its probative value (see s.137 of the Act). No relevant unfair prejudice in the material was identified during the submissions in any event.

13 But in relation to the evidence that I yesterday rejected, it should also be pointed out that in its terms the second conversation (“B”) contemplates a supply which is a separate process from any previous supplies purportedly admitted by the accused. This appears to me to be clear when one considers the introductory comments of the accused in this second conversation “Yeah, no, like what I was saying, is alright like he just leaves me one to play with, you know what I mean … but I’ve got a few people that want, you know, quick”. That seems to suggest a “separate transaction” from other previous transactions.

14 It is in these circumstances, given the lack of particularity as to the timing of previous supplies, that I excluded the evidence of conversations that could reasonably be construed as admissions of past supply of prohibited drugs as irrelevant.

15 If I am in error in excluding the material as “irrelevant”, I would have excluded it in exercise of the discretion available pursuant to s.137 of the Act. Its probative value as evidence of the “process” charged is greatly diminished by its lack of particularity. That the accused supplied to the same people, with Kazzi’s assistance, at an earlier time than that contemplated in the charge does little to establish his intention at the time particularised in the indictment. The unfair prejudice of this material is profound. An admission of prior conduct of a similar nature would have clear prejudice which would be unfair to the accused proportionate to the diminishing probative value. This evidence in its terms would tempt the fact finders to use the evidence on an improper basis, i.e. because the accused may have done this before, therefore he is guilty of this particular crime. This is not a case where prior conduct could rationally inform present intention. The further in time the past conduct of the accused, the less connected it would be to the “process” of which the Prosecutor spoke in his submissions. Even with the benefit of Mr Messina’s evidence the ‘connectedness’ of the events would wind up being a matter of fruitless speculation without other evidence.

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