Stevens v Regina - [2007] NSWCCA 252

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: STEVENS v REGINA [2007] NSWCCA 252

FILE NUMBER(S):
No. 2006/4947

HEARING DATE(S): Wednesday 4 April 2007

JUDGMENT DATE: 28 August 2007

PARTIES:
STEVENS, Anthony Bernard
v REGINA

JUDGMENT OF: McClellan CJ at CL Hoeben J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0118

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 23 June 2006

COUNSEL:
App: P J D Hamill SC
Crown: M A Wigney

SOLICITORS:
App: Hardinlaw
Crown: Commonwealth Director of Public Prosecutions

CATCHWORDS:
Criminal Law – Appeal against sentence – Evidence – Tendency and coincidence – Principles to apply - Whether the evidence had significant probative value – Substantial and relevant similarity – Strong circumstantial evidence – Supply of a large commercial quantity of a prohibited drug – Sections 97, 98, 101, 136 Evidence Act 1995 (NSW)

LEGISLATION CITED:
Drug Misuse & Trafficking Act 1985
Evidence Act 1995
Law Reform (Controlled Operations) Act 1997

CASES CITED:
Regina v Fletcher [2005] NSWCCA 338
Regina v Goodfellow (1994) 33 NSWLR 308
Regina v Hamzy (1994) 74 A Crim R 341
Regina v Zhang [2005] NSWCCA 437

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 2006/4947
McCLELLAN CJ at CL
HOEBEN J
HALL J
TUESDAY 28 AUGUST 2007

ANTHONY BERNARD STEVENS v. REGINA

JUDGMENT

McCLELLAN CJ AT CL: I agree with Hall J.
HOEBEN J: I agree with Hall J.
HALL J: Anthony Bernard Stevens made application dated 15 December 2006 for leave to appeal against the sentence imposed in the District Court of New South Wales (Berman DCJ.) on 23 June 2006.
On 15 June 2006, the applicant pleaded guilty to an indictment containing a single count as follows:-
“Anthony Bernard Stevens between about 24 February 2005 and about 5 March 2005 at Sydney, New South Wales, did supply a large commercial quantity of a prohibited drug, namely, cocaine.”
In the written submissions by the Crown (paragraph 2) it is stated:-
“At the time that he entered his plea, the applicant was aware that, in accordance with the principles considered in Hamzy, the Crown alleged that between 24 February and 5 March 2005, the applicant was involved in a criminal enterprise or activity that incorporated two individual acts of supplying cocaine, the first of which occurred on 25 February 2005, and the second of which occurred on 4 March 2005. These individual acts could fairly and properly be identified as part of the same criminal enterprise.”
As the Crown observed, the applicant did not object to the indictment, even though it was clear that he disputed that he was involved in the act of supply that occurred on 25 February 2005. Accordingly, he disputed that the amount of cocaine involved in the supply was a large commercial quantity, as defined in the legislation (see paragraph [8] below). The hearing proceeded in this way with the applicant submitting that the quantity of cocaine particularised in 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 Stevens v Regina

Details

AGLC: Stevens v Regina [2007] NSWCCA 252
Case: [2007] NSWCCA 252
Decision Date: 28 August 2007

CaseChat Overview and Summary

In the case of Stevens v Regina, the applicant was appealing against his conviction and sentence for drug trafficking offences. The main legal issues before the court were the admissibility of evidence and the application of tendency and coincidence reasoning in assessing the probative value of evidence in criminal cases. The court was required to determine whether the trial judge's reliance on coincidence reasoning in concluding that the applicant was involved in the drug supply on 25 February 2005 was appropriate, and whether the evidence had significant probative value in establishing the applicant's involvement in the drug supply on that date.

The court found that the trial judge's reliance on coincidence reasoning in concluding that the applicant was involved in the drug supply on 25 February 2005 was appropriate. The court held that the evidence established a series of circumstances that, when considered together, pointed to the applicant's involvement in the drug supply on that date. The court found that the evidence had significant probative value in establishing the applicant's involvement in the drug supply on 25 February 2005, and that the trial judge was entitled to use the evidence of the transaction that took place on 4 March 2005 in reaching the conclusion that the applicant was also involved in the supply on 25 February 2005.

The court also found that the trial judge was not bound by the requirement to serve a notice under s.98(1)(a) of the Evidence Act 1995, and that the Crown was entitled to rely on the coincidence rule in assessing the probative value of the evidence. The court held that the trial judge was correct in finding that there was nothing as a matter of logic or law to prevent tendency reasoning being used to reason backwards in time as well as forwards in time.

The court allowed the appeal against sentence and ordered that the applicant be re-sentenced.

Orders

Orders of the court

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Background

Background to the litigation

The Crown submitted that, to an extent, Berman, DCJ. employed coincidence reasoning in arriving at his conclusions. His findings, it was contended, did not involve any tendency reasoning. The Crown also observed that his Honour’s conclusion that the applicant supplied the cocaine on 25 February 2005 was not dependent on the evidence relating to the note.Facts The relevant facts in the statement of facts recorded matters relating to the events on 23 and 25 February 2005 and events relating to 28 February to 5 March 2005. In relation to the period between 23 and 25 February 2005, the evidence was that arrangements were made between a registered police informant known as “Tom” and a person who need only be referred to as “P” in relation to the supply of approximately one kilogram of cocaine. On the evening of 25 February 2005, “Tom” went to “P’s” house in Maroubra. He had with him a kilogram of cocaine which had been provided to him by police under an authority granted under the Law Reform (Controlled Operations) Act 1997. “Tom” and “P” drove to Torrington Road, Maroubra. The car stopped 50 metres in front of a Toyota Landcruiser which had Victorian number plates which were registered to the applicant. “Tom” gave the cocaine to “P” who left the vehicle and walked towards the Landcruiser. However, Tom did not see what happened next, because it was dark. “P” returned with a black bag. The bag contained $165,000 in cash and a note which read “I want one the same again. If I do not ring you midday tomorrow I will be in the same spot Friday week at the same time”. The note, as I have earlier observed, was objected to as being inadmissible. Police subsequently followed the Landcruiser from a point in Maroubra to Albion Park, near Wollongong. On Friday 4 March 2005, “Tom” again went to “P’s” house with a kilogram of cocaine, again supplied by police pursuant to a controlled operation. “P” was given the cocaine and left the car and came back with a bag containing money. The applicant’s car was observed by police in the vicinity of Malabar Road and it was followed to Victoria. Victorian Police stopped the vehicle and the cocaine identified as that the police had given “Tom” was located in the vehicle. It was contended by counsel on behalf of the applicant before Berman DCJ that:-(a)The Crown had the onus of establishing beyond reasonable doubt that the applicant actually came into possession of cocaine on 25 February 2005.(b)That the applicant’s presence on 25 February 2005 goes no further than evidence concerning the establishing that his vehicle was in the same area. That was insufficient to rebut a reasonable hypothesis consistent with innocence, namely, that the parcel of cocaine went to somebody else in the street at the time of the events in question. It is clear that the statement of facts relied upon by the Crown established the following events in respect of the evening of 25 February 2005:-•By pre-arrangement, “Tom” and “P” met at Maroubra for the purpose of effecting a transaction involving the supply of cocaine by “Tom” to “P”.•Both men travelled with the cocaine to Torrington Road, Maroubra where the vehicle in which they were travelling stopped at a point on the roadway. There was no suggestion that they were intending to enter a house or other premises or property located in that street, nor did they do so.•At the time of their arrival in Torrington Road, there was also located in that street a vehicle registered in the name of the applicant. The vehicle in which “Tom” and “P” were travelling stopped 50 metres in front of the first-mentioned vehicle.•The only known activities that occurred after “Tom” and “P” arrived at Torrington Road and as disclosed in the facts were:-(a)That “P” alighted from his vehicle and walked towards the vehicle registered to the applicant.

Evidence

Evidence Before The Court

For reasons developed below, I consider that the Crown has made good its submission, for the four reasons stated in its submission and set out above.Evidence as to the applicant’s involvement/participation in the drug supply on 25 February 2005 Mr Hamill SC contended that there was no evidence establishing beyond reasonable doubt that the applicant was involved in the first transaction. In relation to it, the Crown relied upon “a series of circumstantial inferences”. In his oral submissions, Mr Hamill stated:-“The first thing is whether, on the primary facts as accepted by both sides, there was a reasonable hypothesis consistent with innocence, whether it was established beyond reasonable doubt the applicant was involved it the first transaction. It is not a case of coincidence reasoning, except insofar as there is always an element of coincidence reasoning in every circumstantial case. It is really a combination of facts which lead to only one possible, or rational, explanation.” Mr Hamill went on to state that the evidence did not permit Berman DCJ to find that the applicant was involved beyond reasonable doubt in the first transaction. In this respect, he observed that the cocaine in question was never recovered, it was never seen in the hands of the applicant, nor was the bag seen in his hands. Nor was it seen to be placed or taken into the applicant’s car. He contended that the evidence did not exclude the possibility that the man, “P”, was the recipient of the drugs or that he passed them on to a third unknown person. “P’s” house and vehicle were not searched and “P” was not called to give evidence to exclude the possibility that he was a person ultimately in possession of the drug. Further, his vehicle was not searched after it was seen to leave the Maroubra area. Mr Hamill referred to the evidence which established that, because it was dark, there was no evidence as to “P” having walked to and reached the applicant’s vehicle. Additionally, there was no evidence of the number of people in his vehicle on the evening in question.Consideration The evidence and the matters that it establishes, as summarised in paragraph [28] above, in my view, constituted strong circumstantial evidence that the cocaine in question was delivered to and received by the applicant on 25 February 2005. Apart from that evidence, Berman DCJ was, in my opinion, entitled to have regard to the facts established concerning the transaction that took place on 4 March 2005 and to use that evidence in reaching the conclusion, beyond reasonable doubt, that the applicant was a party to the transaction on 25 February 2005 and received just under one kilogram of cocaine from “P”. I accept the Crown’s submission that in his Honour concluding that the 4 March 2005 supply had significant probative value in relation to the question whether the applicant was also involved in the 25 February 2005 supply, that such finding was plainly open, as the evidence was capable, to a significant extent, of rationally affecting the assessment of the probability that the applicant was involved in the supply that occurred on 25 February 2005. The Crown correctly, in my opinion, submitted:-“… having regard to the events of 4 March, it was a highly improbable coincidence that the applicant was innocently in his car parked 50 metres from where Tom and (P) stopped on Torrington Road on the evening of 25 February …”

Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

Mr Hamill referred to the evidence which established that, because it was dark, there was no evidence as to “P” having walked to and reached the applicant’s vehicle. Additionally, there was no evidence of the number of people in his vehicle on the evening in question.Consideration The evidence and the matters that it establishes, as summarised in paragraph [28] above, in my view, constituted strong circumstantial evidence that the cocaine in question was delivered to and received by the applicant on 25 February 2005. Apart from that evidence, Berman DCJ was, in my opinion, entitled to have regard to the facts established concerning the transaction that took place on 4 March 2005 and to use that evidence in reaching the conclusion, beyond reasonable doubt, that the applicant was a party to the transaction on 25 February 2005 and received just under one kilogram of cocaine from “P”. I accept the Crown’s submission that in his Honour concluding that the 4 March 2005 supply had significant probative value in relation to the question whether the applicant was also involved in the 25 February 2005 supply, that such finding was plainly open, as the evidence was capable, to a significant extent, of rationally affecting the assessment of the probability that the applicant was involved in the supply that occurred on 25 February 2005. The Crown correctly, in my opinion, submitted:-“… having regard to the events of 4 March, it was a highly improbable coincidence that the applicant was innocently in his car parked 50 metres from where Tom and (P) stopped on Torrington Road on the evening of 25 February …” At the hearing, no issue was taken as to the failure by the Crown to serve a notice pursuant to s.98(1)(a) of the Evidence Act 1995 and the Crown in fact relied upon the provisions of s.98, the coincidence rule. On the issue of the quantity of cocaine in the applicant’s possession, Berman DCJ, in his judgment of 15 June 2006, stated:-“The Crown asks me to find, beyond reasonable doubt, that what occurred on that evening was that [P] gave the cocaine to this offender. The Crown says that whilst no-one actually saw that occur, I can infer that that is what in fact took place because of what later occurred on 4 March, that is one week later. The Crown relies on coincidence and tendency reasoning, saying that I can conclude beyond reasonable doubt from what occurred on (sic) 5 March 2005 that the offender received the cocaine on 25 February 2005. I should indicate at this stage that Mr Bromwich says that it is not permissible to reason back, using tendency reasoning, tendency only operates one way. I do not accept that is a correct statement of law. Mr Bromwich was unable to assist me with any authority establishing that as a correct statement of law.” His Honour then addressed this last-mentioned issue, stating:-“… I am satisfied that there is nothing as a matter of logic or law to prevent tendency reasoning being used to reason backwards in time as well as forwards in time …”