Wedi Ndjeka Bembo v The Queen
[2018] VSCA 42
•28 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0077
| WEDI NDJEKA BEMBO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 January 2018 |
| DATE OF JUDGMENT: | 28 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 42 |
| JUDGMENT APPEALED FROM: | DPP v Wedi Ndjeka Bembo (Unreported, County Court of Victoria, Judge Cannon, 11 October 2016 (Conviction)) |
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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Conspiracy to import commercial quantity border controlled drug – Applicant’s property searched twice – Drugs found on second search – Whether trial judge erred in refusing to exclude evidence of drugs found on second search – Whether probative value of evidence outweighed prejudicial effect – Leave to appeal granted – Appeal dismissed – Decision not to exclude correct and not productive of substantial miscarriage of justice – IMM v The Queen (2016) 257 CLR 300 applied – Evidence Act 2008 (Vic) s 137.
CRIMINAL LAW – Conviction – Application for leave to appeal – Whether trial judge erred in refusing to exclude telephone conversation concerning domestic drug trafficking – Evidence relevant and admissible – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Dr M Fitzgerald | Dr Martine Marich & Associates |
| For the Respondent | Mr L Crowley | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
WHELAN JA:
On 11 October 2016 the applicant was found guilty after a trial of conspiracy to import a commercial quantity of a border controlled drug. On 24 March 2017 the applicant was sentenced for that offence, and was dealt with for breach of a prior suspended sentence. The applicant now seeks leave to appeal against his conviction on the following proposed grounds:
1.The trial judge erred in admitting evidence that methamphetamine was found at the residence of the applicant, thereby causing a substantial miscarriage of justice;
2.The trial judge erred in admitting evidence of other drug sales by the applicant, thereby causing a substantial miscarriage of justice.
The respective cases at trial
The prosecution case was that the applicant had, with two co-accused, used overseas contacts to arrange the importation of high-purity methamphetamine from Guangzhou, China. Four kilograms of methamphetamine were to be imported, using two couriers who had been recruited by a co-accused upon the instructions of the applicant. Each courier was to carry two kilograms of methamphetamine in a suitcase. The couriers had been told that they would be transporting important documents, such as false passports, to Australia.
The two couriers left Australia but did not return from China. There was no evidence as to what had become of them.
The prosecution case was substantially based upon intercepted communications between the applicant, the co-accuseds, and other parties. Some portions of the intercepted communications revealed that the applicant was involved in trafficking methamphetamine within Australia. One such portion of an intercepted communication, being a telephone conversation between the applicant and a co-accused on 20 May 2014,[1] is the subject matter of proposed ground 2.
[1]Some of the materials give the date of the conversation as 21 May 2014. The relevant transcript is item 8 of volume 1 of the Jury Book. The schedule to volume 1 of the Jury Book gives the date of the conversation as 20 May 2014, as does the description at the head of the telephone intercept transcript for the conversation at page 26 of volume 1 of the Jury Book.
The prosecution case was that the intercepted communications revealed the motive for the planned importation. The applicant was selling South African methamphetamine, referred to as ‘Mandela’, which was of inferior quality because of its low purity. The applicant wished to obtain methamphetamine produced in China, referred to as ‘Bruce Lee’, which was of superior quality because of its higher purity.
The prosecution also relied upon evidence of money transfers to China, expert evidence in relation to methamphetamine production in China and methamphetamine trafficking in Australia, evidence of the travel arrangements made for the couriers, and evidence that a quantity of methamphetamine was found by police in the garage of the applicant’s house. The evidence of the methamphetamine found in the garage is the subject matter of proposed ground 1.
In response to the Crown’s opening, counsel for the applicant told the jury that there was no issue that the applicant was involved in various telephone discussions and no issue that in those discussions he was making arrangements with various people. The applicant’s counsel further told the jury that there was no issue that some of the discussions were covert; that at times a code was used; and that the discussions related to something small, of high value, that could be of high quality or low quality, and the possession of which carried an element of danger or the potential for prosecution.
The applicant gave evidence in the trial. His evidence was that the intercepted communications, and the arrangements for the couriers, were in relation to an attempt to import black market diamonds rather than methamphetamine. To support this contention, the applicant adduced evidence that his mother had been arrested in December 2013 upon entry into Australia after a flight from Guangzhou, China with rough, uncut diamonds.
Before us counsel for the prosecution characterised the issue in the trial as being one of ‘subject matter’, that is, had the prosecution proved beyond reasonable doubt that the subject matter of the covert arrangements in which the applicant had participated was a border controlled drug.
Methamphetamine in the garage
The applicant was arrested on 26 June 2014 at his home. Police and customs officers conducted a search of the house and garage. They utilised an X-ray machine. Two dogs, a ‘currency and drug’ dog and a ‘firearms and explosives’ dog, were deployed. A number of boxes in the garage were x-rayed and boxes were also searched by hand. The garage was messy and cluttered. The currency and drug dog was deployed inside the house but it was led into and out of the property through the garage. No methamphetamine was found in the applicant’s house or garage on 26 June 2014.
The applicant was taken into custody on 26 June 2014.
A second search was conducted on 4 July 2014. The purpose of the second search was to seize mobile phone handsets that had been photographed but not seized in the first search. A quantity of methamphetamine was found in the garage in the second search. The methamphetamine had a gross weight of 14.3 grams.
The conversation of 20 May 2014
One of the intercepted communications sought to be led by the prosecution was a telephone conversation of 20 May 2014 between the applicant and one of the co-accused. The portion of the telephone intercept transcript relevant to this application reads as follows:
[Applicant]: mmmmm Guess what Papi?
[Co-accused]: Yeah what
[Applicant]: No no no, (inaudible) somebody order something last night
[Co-accused]: Yeah
[Applicant]: Some Sierra Leone man
[Co-accused]: Yeah
[Applicant]: He order something brown
[Co-accused]: Yeah
[Applicant]: Figure the he give me Papi, two rubbish
[Co-accused]: Yeah
[Applicant]: I cannot lie to you, two rubbish. He still arranged 2.
[Co-accused]: Yeah
[Applicant]: I say 2 is 2 k g s, the first time is plenty, trust me on that one arrange two.
[Co-accused]: yeah, yeah I had dream man, I had to call you let you know I had a dream, yeah my head, I had a dream where you standing in the rain, (inaudible) I was there (inaudible) … with you.
A little later in the same conversation the co-accused refers to both ‘Bruce Lee’ and ‘Mandela rubbish’.
The relevant pre-empanelment applications
Between 30 March 2016 and 28 April 2016 pre-empanelment hearings were conducted by her Honour Judge Gaynor. From 29 April 2016 her Honour Judge Cannon took over the carriage of the matter and further pre-empanelment issues were addressed before a jury was empanelled on 25 July 2016.[2]
[2]That jury was discharged the following day after a question from the jury in relation to the custody status of the accused men. A further jury was empanelled and discharged on 27 July 2016 following a similar question. A third jury was empanelled on 28 July 2016.
In the course of the pre-empanelment hearings before Judge Gaynor, counsel for the applicant sought to have excluded, under s 137 of the Evidence Act 2008, the evidence of the 14.3 grams of methamphetamine that had been found in the applicant’s garage on 4 July 2014. Her Honour refused to exclude the evidence. She indicated that she would instruct the jury that unless they were satisfied the 14.3 grams had been in the garage on 26 June 2014 the evidence should be set aside and treated as irrelevant.
After detailed evidence of the searches was led at a hearing prior to the empanelment, counsel for the applicant made a second application to Judge Gaynor to have the evidence of the 14.3 grams excluded. It was submitted on behalf of the applicant that the likelihood of the drugs being present in the garage during the 26 June 2014 search had been weakened by evidence given of the extensive nature of the search undertaken that day, and that the consequent low probative value of the evidence was outweighed by unfair prejudice to the applicant. It was also submitted that the admission of the evidence created an unacceptable risk of the jury using impermissible reasoning of a ‘circular’ nature, in that the jury might use the evidence from the intercepted communications to conclude that the drugs were in the garage on 26 June 2014, when evidence of the drugs discovered in the garage was being led to make more likely the proposition that the applicant and his co-accused were discussing the importation of a border controlled drug. Judge Gaynor again ruled against exclusion.
During the course of the pre-empanelment hearings before Judge Gaynor, the applicant also sought to have the portion of the recorded telephone conversation of 20 May 2014 quoted earlier excluded under s 137 of the Evidence Act. Counsel for the applicant sought exclusion on the ground that the relevant part of the conversation was a reference to ‘domestic drug trafficking’. Counsel for the co-accused who had participated in the conversation sought to have the entire conversation excluded. Judge Gaynor ruled against the exclusion.
The rulings made by Judge Gaynor on these two items of evidence were applied in the trial conducted before Judge Cannon.
The rulings
Before us counsel for the applicant submitted that in the course of hearing objections to the admissibility of portions of the intercepted communications, an understanding or ‘rule of thumb’ was adopted by the judge whereby conversations that related solely to domestic drug trafficking were excluded and conversations which bore upon the prosecution’s asserted motivation for the conspiracy, namely to obtain the higher quality Chinese methamphetamine (Bruce Lee) to replace the lower quality South African methamphetamine (Mandela), were not excluded. Counsel for the applicant referred to passages in the pre-hearing transcript in which it was said that the existence of this approach is revealed. Counsel for the applicant submitted that the application for exclusion of the conversation of 20 May 2014 was to be understood in that context, and that her Honour’s ruling was also to be understood in that context.
Counsel for the respondent accepted that the judge had proceeded on what the respondent characterised as a ‘working theory’ that conversations referable only to domestic trafficking were excluded and those referable to a quality differentiation between methamphetamine from South Africa (Mandela) and methamphetamine from China (Bruce Lee) were admitted. Conversations which were ‘intertwined’ were admitted.
Her Honour ruled on the application for exclusion of the evidence of the 20 May 2014 conversation on 4 April 2016. She found that the conversation was relevant as demonstrating the relationship between the applicant and the co-accused and a recognition by the co-accused of the terms used by the applicant which were relevant to the alleged conspiracy. Her Honour said:
This seems to me to be a general conversation demonstrating the relationship between [the co-accused] and [the applicant] without necessarily referring to any particular deal; simply discussing a possible customer, the problem with the Mandela rubbish, and demonstrating that [the co-accused], the Crown would say, understands that the Bruce Lee product is better than the Mandela product, and in a contextual sense, it does seem to me that this call does [have] relevance.
Her Honour continued:
It does have relevance overcoming the prejudicial aspect.
The first ruling in relation to exclusion of the evidence concerning the finding of 14.3 grams of methamphetamine in the garage was overtaken by events when detailed evidence about the searches was given before the empanelment. The first ruling’s continued relevance was that, whilst Judge Gaynor refused to exclude the evidence, she concluded her ruling as follows:
However, in my view the jury must be clearly instructed as a matter of law, that unless they are satisfied the drugs were present at the premises during the first search, although not detected, they must put this evidence to one side as irrelevant to their further considerations.
Judge Gaynor’s second ruling on admission of the evidence of the methamphetamine found in the garage, given after the evidence of the searches was led, was delivered on 27 April 2016.
Judge Gaynor began her ruling by describing the relevance of the methamphetamine found in the garage as contended for by the prosecution. She said that the prosecution sought to rely upon the methamphetamine located in the garage as a piece of circumstantial evidence supporting the proposition that the subject matter of the covert arrangements was methamphetamine.
Judge Gaynor then described the evidence which had been given about the searches. She said that that evidence had revealed that the search on 26 June 2014 had been ‘wide ranging and thorough’. The evidence had also revealed, however, that ‘not every item in the garage was actually searched’.
She then referred to the second search and to the evidence that methamphetamine was discovered ‘in a white plastic bag inside an open cardboard box also containing a bottle of methylated spirits’.
Judge Gaynor then referred to her earlier ruling and to the submissions that had been made to the effect that the evidence should be excluded under s 137 of the Evidence Act.
The judge observed that the evidence of the methamphetamine found on 4 July 2014 was relevant only if the jury were satisfied that it had been there prior to the applicant’s arrest on 26 June 2014. She observed that s 61 of the Jury Directions Act 2015 meant that the jury did not have to be satisfied of that fact beyond reasonable doubt.[3]
[3]The judge misstated the effect of s 61 of the Jury Directions Act but no issue was raised in relation to that.
The judge then said:
Overall, this is a piece of evidence which is part of a jigsaw of pieces of evidence which, together, are said to make up the prosecution case. At law, the weakness of a piece of evidence does not thereby give rise to unfair prejudice unless there is a danger the jury will misuse it. At the end of the day, the possibility that the drugs were in the garage on June 26 2014, but missed in the search, is open on the evidence, however much that proposition may be open to challenge.
The judge then observed that the evidence concerning the discovered methamphetamine was able to be tested.
The judge accepted a submission made by the prosecutor that the jury could use the evidence of the intercepted communications in determining whether the applicant had been in possession of the methamphetamine which was found on July 4. The judge said that each ‘piece’ of the ‘jigsaw puzzle pieces’ could be looked at in the context of the other pieces ‘surrounding it’.
The judge said that these issues ultimately were matters for the jury. She rejected the proposition that there was a real danger that the evidence would be misused. She concluded:
The evidence, therefore, should be admitted and will undoubtedly be strongly challenged by the defence. However, the jury should be clearly directed as to the necessity of finding the drugs were in [the applicant’s] garage on 26 June and of the importance that this finding has to determining they were his.
Proposed ground 1 — methamphetamine in the garage — submissions
The foundation of the applicant’s submissions in relation to proposed ground 1 was that the evidence led in relation to the two searches meant that the probative value of the evidence was extremely limited because the inference that the methamphetamine found on 4 July 2014 had been in the garage on 26 June 2014 was a ‘tenuous’ one. The applicant was concerned to emphasise that this was not a submission about the unreliability of the evidence. In that respect reference was made to the High Court decision in IMM v The Queen (‘IMM’).[4] The applicant accepted that under IMM, when weighing probative value against unfair prejudice as required by s 137 of the Evidence Act, the probative value of the evidence was to be assessed ‘at its highest’. The applicant particularly relied upon the passage in IMM where the majority observed that ‘[t]he circumstances surrounding the evidence may indicate that its highest level is not very high at all’.[5] The applicant accepted that the evidence in issue here was not evidence falling within the category of evidence which the majority in IMM described as ‘inherently incredible or fanciful or preposterous’,[6] but rather submitted it was evidence relevantly analogous to the example given by J D Heydon QC, which was adopted by the majority in IMM,[7] concerning an identification made briefly in foggy conditions and in bad light by a witness who did not know the person identified.
[4](2016) 257 CLR 300.
[5]Ibid 315 [50].
[6]Ibid 317 [58].
[7]Ibid, 315 [50].
It was submitted on the applicant’s behalf that the circumstances which meant the probative value ‘at its highest’ was extremely low was the evidence given as to the two searches, particularly the evidence of the very comprehensive nature of the search conducted on 26 June 2014 and the much less comprehensive nature of the search conducted on 4 July 2014; the absence of any identifiable connection between the methamphetamine found in the garage and the South African methamphetamine which, on the prosecution case, was of such poor quality that an alternative source in China was being sought; the small quantity of the methamphetamine found in the garage which was said to be ‘consistent with domestic retail drug trafficking’ and not the conspiracy alleged; and the absence of any forensic evidence connecting the applicant, by way of fingerprints or DNA, to the methamphetamine found in the garage. It was submitted that the judge had failed to undertake the ‘weighing’ process required by s 137.
The evidence was said to be unfairly prejudicial because, notwithstanding that the deficiencies in the evidence could all be explored before the jury, there was a risk that the jury would engage in ‘circular’ reasoning in that they would rely on the evidence in the intercepted phone calls, and the other evidence relied upon by the prosecution, to conclude that the methylamphetamine found on 4 July 2014 had been there on 26 June 2014.
The respondent placed particular emphasis upon the fact that there was only one issue in the trial, being what was the subject matter of the admittedly clandestine arrangements which were being made. In that context it was submitted that the evidence had significant probative value and that any ‘prejudice’ was simply constituted by the circumstance that the evidence strengthened the Crown’s circumstantial case. The respondent relied upon a decision of the Court of Criminal Appeal of New South Wales, Davidson v The Queen (‘Davidson’).[8] In that case the relevant charge was importation of a border controlled drug. Evidence had been admitted that traces of the same type of drug had been found in the accused’s bedroom. Simpson J, with whom Spigelman CJ and James J relevantly agreed, found that the evidence had been properly admitted as, although it did not prove the importation, it was capable of establishing that the accused ‘had an interest in having the drug and a willingness to have it in his possession’.[9]
[8](2009) 75 NSWLR 150.
[9]Ibid 166 [82].
On behalf of the respondent it was submitted that the matters said to undermine the probative value of the evidence were all matters for the jury and that the relevant issue was not an assessment of what inference the jury should draw but rather what the evidence was capable of establishing. It was submitted that under the authority of IMM the trial judge had been required to take the evidence at its highest and that her approach of admitting the evidence because it was open to the jury on the evidence to draw the inference that the methamphetamine had been there on 26 June 2014 was correct.
The respondent submitted that the methamphetamine found in the garage was of low purity and that that was relevant given the alleged motive for the conspiracy, namely to replace the inferior product already held with a superior product from China.
Proposed ground 1 — methamphetamine in the garage — the relevant evidence
In relation to this proposed ground we must assess for ourselves, in the context of the trial as a whole, whether the probative value of this evidence was outweighed by its prejudicial effect.[10] The question is whether the decision not to exclude the evidence under s 137 was an error, and, if so, whether it was productive of a substantial miscarriage of justice.[11]
[10]McCartney v The Queen (2012) 38 VR 1, 7 [32].
[11]See, eg, McCartney v The Queen (2012) 38 VR 1, 11–12 [50]; Dupas v The Queen (2012) 40 VR 182, 249 [241].
The relevant issue, whether characterised as ‘reliability’ or not, was whether an inference could be drawn that the methamphetamine was the applicant’s, given that it had not been found on 26 June 2014 and given that the applicant had been in custody from that date.
Critical to the primary judge’s conclusion was her finding that it was open on the evidence for the jury to find that the methamphetamine had been present on 26 June 2014 but had not been found. The applicant did not contend that that conclusion was not open, but did contend that it was ‘tenuous’. Particular emphasis was placed on the use of the x-ray machine and the deployment of the dogs during the 26 June 2014 search.
Before the jury evidence concerning the dogs was given by the Australian Federal Police officer who handled them, Sean Hardwick. As I have said, one of the dogs was a currency and drug dog. Mr Hardwick gave evidence of the factors which can enhance and inhibit that dog’s capacity to detect drugs. He said he did not have a clear recollection of the specific search. From his recollection he said the dog was deployed and commenced searching inside the house and not in the garage. He said he walked with the dog in and out of the property through the garage but did not direct a search by the dog in the garage. His recollection was he was concerned for the safety of the dog in the garage due to its messy state. In cross-examination he said that he could not ‘100 per cent’ recall if he searched the garage or not. It was not directly put to him that if the methamphetamine had been in the garage on 26 June the dog would have detected it or would probably have done so. The closest counsel came to that was the following:
[Counsel]:He is capable of finding drugs in a bag that’s zipped up that comes in, isn’t he?
[Witness]:Potentially, yes. Again can’t be 100 per cent — dogs aren’t 100 per cent.
Later, the handler agreed the dogs are trained using drugs in clip sealed bags. The handler said every situation was different and observed: ‘Does he miss drugs? Yes he does’.
The Australian Border Force officers who operated the x-ray machine gave evidence. One of them, Michael Stewart, had very little recollection of what was x-rayed. The other, Michelle Schrivener, said that items were x-rayed as brought to them by federal police officers. They x-rayed 23 boxes and various other items. In cross-examination she agreed some boxes were open and some were closed. She saw some boxes being searched by hand.
The field commander at the search on 26 June 2014 was Detective Sergeant Keith Randall of the Australian Federal Police. His evidence concerning the search of the garage was that he went into the garage two or three times and that he saw things being moved. He thought the officers searching the garage were officers named Hasler and Lewis.
Senior Constable Lewis gave evidence that he was part of the search team but he could not recall which part of the property he searched. Constable Geoff Hasler gave evidence that he was part of the search team on both 26 June and 4 July 2014. His evidence was that he could recall ‘parts’ of the search on 26 June 2014 and that he had located items in the garage. In cross-examination he agreed he received directions while searching the garage but he could not recall from whom. He agreed he was involved in searching the garage for two and a half to three hours with other officers. He agreed boxes were opened and looked through and that arrangements were made with ‘Customs’ to x-ray boxes. When asked if he had only stopped searching when the task was complete, he said ‘I believe so’. He agreed he had no personal recollection of the methamphetamine being found on 4 July 2014.
The officer who found the methamphetamine on 4 July 2014 was Senior Constable Stanley Nassiokas. He had not been present on 26 June 2014. His evidence was that he was searching through boxes with food items when he saw a ‘plain box’ with the flaps folded in. He went on:
In the box was a bottle of methylated spirits, then there was a plastic bag, and then inside that plastic bag was a clip-seal bag containing an off-white crystalline substance.
His evidence was that he initially thought it was salt, but because of the presence of methylated spirits, he reported it to his superior who arranged for it to be tested by a forensic officer.
A pre-search video of the premises was tendered as exhibit J. The video shows the whole house, including the garage, as it was prior to the search on 26 June. The garage is messy. There are items stacked around the walls, including plastic containers and cardboard boxes stacked in places three boxes high. A post search video was tendered as exhibit K. The video again shows the whole house, including the garage. All or nearly all the items in the garage appear to have been moved. The number of items, including boxes, in the garage seems greater than the number that appeared to have been present in the pre-search video, probably because they are no longer stacked against the walls.
A review of the search evidence confirms, in my view, the judge’s analysis. It was open to the jury to find the methamphetamine had been missed on 26 June 2014 but that proposition was also open to be strongly challenged.
The evidence concerning the significance of the purity of the methamphetamine found on 4 July 2014 was as follows:
(a) The certificate under s 233BA of the Customs Act 1901 (Cth) which was tendered described the substance analysed as ‘white crystalline powder’ and stated that the analysis revealed that the substance contained 45.0 per cent methamphetamine and that it also contained dimethyl sulfone. The crime scene investigator responsible for the analysis, Karina Craig, gave evidence. She confirmed that the methamphetamine content was 45 per cent, and she said that dimethyl sulfone was a ‘cutting agent’. When she was asked by the prosecutor to express an opinion as to the level of purity of ‘crystal methamphetamine’ of 45 per cent objection was taken and the prosecutor did not persist.
(b) Expert evidence as to the market for methamphetamine in Australia was given by a Detective Sergeant Randall, who said that methamphetamine or amphetamine powder typically had a purity of 15 to 20 per cent and that ‘crystal methamphetamine’ is ‘most consistently … up at in excess of 70 per cent’.
(c) Expert evidence was given by another detective sergeant of the Australian Federal Police, Aaron Hardcastle, in relation to the manufacture of methamphetamine in China. As to the purity of the Chinese product, his evidence was that it is ‘typically high, according to international standards’.
On the basis of this evidence it was open to the jury to conclude that crystal methamphetamine imported from China was likely to have a higher purity than the white crystalline substance found in the applicant’s garage. It was also open for them to conclude that that white crystalline substance had a lower purity than what would be expected of crystal methamphetamine in Australia.
Proposed ground 1 — methamphetamine in the garage — analysis
If it was concluded that the methamphetamine in the garage belonged to the applicant, this would render more likely the proposition that the subject matter of the covert arrangements was a border controlled drug. It renders it more likely both because it reveals the applicant’s interest in possession of the drug, as in Davidson, and because the particular drug was of a purity which was lower than would normally be expected in Australia and was lower than the expected purity of crystal methamphetamine imported from China. This latter consideration was significant given the terms of the intercepted communications.
The judge was right to characterise this evidence as ‘one piece’ of a ‘jigsaw’ constituting the prosecution’s circumstantial case.
The judge was conscious of the potential shortcomings in the evidence. But, taken at its highest, it was open to the jury to find that the methamphetamine was there on 26 June 2014 but was missed in the search, and it was then open to conclude that the methamphetamine was the applicant’s. That was probative in the manner explained.
As to prejudice, in my view, the danger of unfair prejudice did not outweigh the evidence’s probative value taken at its highest. Taken at its highest, in combination with the other evidence, the jury could conclude the methamphetamine was the applicant’s. In the context of a circumstantial case of this kind that process of reasoning would not constitute misuse of the evidence or prejudice in the relevant sense.
In my view, the judge’s decision to admit this evidence was correct. It did not result in a miscarriage of justice.
Proposed ground 2 — conversation 20 May 2014 — submissions
The ruling the judge gave in relation to the conversation of 20 May 2014 addressed the admissibility of the conversation as a whole, as objection to the whole conversation had been taken by the applicant’s co-accused. The applicant only objected to the passage quoted earlier. The applicant contended that that passage should have been excluded as it was clearly only referable to domestic drug trafficking, and that the judge had correctly adopted the approach of excluding such evidence. It was submitted that the later part of the conversation where reference was made to ‘Bruce Lee’ and to ‘Mandela rubbish’ was admissible.
The respondent submitted that this was an ‘intertwined’ conversation and that the connection between the extract which the applicant contended ought to be excluded, and the later part of the same conversation which the applicant conceded was properly admitted, was, amongst other things, that both parts of the conversation referred to product which was ‘rubbish’. It was submitted that, as the judge had said, the conversation revealed the nature of the relationship between the co-accused and the applicant and also revealed their shared understanding about the Mandela product and the Bruce Lee product.
The respondent did not contend before us that the judge’s ‘working theory’ whereby she excluded evidence solely referable to the applicant’s domestic drug trafficking was incorrect. I accordingly express no view upon it.
In my opinion the relevant extract of the conversation was relevant and admissible, even accepting the trial judge’s approach of excluding conversations referable exclusively to domestic drug trafficking. There is a connection between the two parts of the conversation in the references to the problem with the ‘rubbish’. The conversation is relevant to the nature of the relationship between the applicant and his co-accused and their shared understanding of the terms used and the characteristics of the Bruce Lee product and the Mandela product.
The trial judge in her charge directed the jury not to use evidence of drug transactions not the subject of the alleged conspiracy, which had been revealed in the telecommunication intercepts, for an impermissible propensity/tendency purpose, and no complaint as to the directions given in that regard is made.
Conclusions
The applicant should have leave to appeal on proposed ground 1 as it was arguable, but the appeal should be dismissed. Leave to appeal should be refused on proposed ground 2.
BEACH JA:
I agree with Whelan JA.
KYROU JA:
I agree with Whelan JA.
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