Wedi v The Queen
[2020] VSCA 86
•15 April 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0273
| NATTE BROWN WEDI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 15 April 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 86 |
| JUDGMENT APPEALED FROM: | [2018] VCC 2 (Judge Lewitan) |
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CRIMINAL LAW – Appeal – Conviction – Importing a commercial quantity of border controlled drug by proxy – Applicant caused suitcase to be brought to Australia on two occasions – Methamphetamine found in suitcase on second occasion – No evidence first suitcase contained drugs – Coincidence evidence – Evidence of first occasion led to prove physical element of offence – Whether trial judge erred in admitting coincidence evidence – Whether probative value of evidence substantially outweighed any prejudice it may have had on applicant – Evidence admissible – Any prejudice ameliorated by strong direction – Leave to appeal refused – Evidence Act 2008 ss 98, 101(2).
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| APPEARANCES: | Counsel | Solicitors |
No appearances |
PRIEST JA
T FORREST JA
WEINBERG JA:
Summary
The applicant was convicted, after trial in the County Court, of one charge of importing a commercial quantity of a border controlled drug, contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth) (‘the Code’), by virtue of s 11.3 of the Code. He was sentenced to 13 years’ imprisonment with a non-parole period of eight years.
The applicant seeks leave to appeal on a single ground:
The Trial Judge erred in ruling that the prosecution could lead evidence of what occurred on 18 December 2013 as coincidence evidence.
The trial judge’s ruling was previously considered by this Court in Pope (a pseudonym) v The Queen.[1] It involved an application to review the decision of the trial judge not to certify under s 295(3) of the Criminal Procedure Act 2009. The impugned ruling concerned the admission of certain evidence as coincidence evidence.
[1][2017] VSCA 324.
Background
It is necessary to set out in short form how the prosecution put its case at trial.
The prosecution alleged that the applicant imported 2914.3 grams of pure methamphetamine on 25 December 2013 by proxy, pursuant to s 11.3 of the Code. Section 11.3 provides as follows:
A person who:
(a)has, in relation to each physical element of an offence, a fault element applicable to that physical element; and
(b)procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it;
is taken to have committed that offence and is punishable accordingly.
The prosecution alleged that the applicant and Essa Harrison procured the importation by recruiting three young Australian women (Rina Lemi, Noura Douka and Monica Haris-Peter) to travel to South Africa purportedly to promote a forthcoming event. The prosecution alleged that, unknown to the women, the applicant planned to secrete a commercial quantity of methamphetamine within luggage to be carried by one or more of the women on their return flight to Australia.
In late November 2013, the women flew to Johannesburg. The applicant and Harrison were already there. The women were then engaged in performing bogus promotional work. Harrison flew suddenly to Australia on 12 December 2013. The applicant and the three women remained in Johannesburg. Haris-Peter flew back to Melbourne on 18 December 2013. Whilst at Johannesburg airport, the applicant gave her a suitcase and instructed her to check it in as part of her luggage, which she duly did.
The evidence at trial established:
·At Johannesburg airport on 18 December 2013, the applicant told Douka and Lemi to go to the car and get both bags that were in it. They did so.
·Haris-Peter possessed only one bag and had not seen the other bag previously.
·The combined weight of both bags was above the allowable limit. The applicant told Haris-Peter to check the other bag in and that they would bring her bag back to Australia when they returned at a later stage. The applicant also told her that the other bag contained promotional uniforms.
·The applicant told Haris-Peter that he would call her to arrange collection of the bag upon arrival in Melbourne. He also told her not to give the bag to Harrison.
·On 20 December 2013, Haris-Peter arrived in Australia with the bag. Later that day, the applicant called her from South Africa and asked if she still had the bag. She confirmed she did. He said a man called Jason will pick up the bag.
·On 21 December 2013, by arrangement, Haris-Peter met with a man known only as Jason at an IGA grocery store and handed the bag to him.
The evidence at trial further established that:
·On 24 December 2013 at Johannesburg airport, the applicant gave Lemi a suitcase prior to check-in. She had not seen it before.
·He asked her to take the suitcase to Australia.
·He told her the suitcase contained promotional uniforms, and not to give the suitcase to Harrison upon her arrival in Australia.
·He told her that he would collect the suitcase or alternatively, he would arrange for its collection.
·He told her that the suitcase belonged to him, not to Harrison.
·Lemi and Douka arrived in Melbourne on 25 December 2013. The suitcase was in Douka’s possession when inspected by customs officers. It contained 2914.3 grams of methamphetamine.
There is no evidence as to the contents of the suitcase the subject of the 18 December flight.
In pre-trial argument, the prosecution sought to lead evidence of the 18 December suitcase shipment (‘the first event’) as coincidence evidence against the applicant, said to bear upon the fact in issue of whether he procured the physical element of the importation of methamphetamine. A coincidence notice was served.
The coincidence evidence was adduced to prove the physical elements of the offence, including that the applicant:
·gave Lemi a suitcase that did not belong to her at Johannesburg airport on 24 December 2013;
·asked Lemi to take the suitcase to Australia;
·told Lemi and Douka that the suitcase contained promotional uniforms;
·told Lemi not to give the suitcase to Harrison upon arrival in Australia; and
·told Lemi that he would collect the suitcase or would arrange for someone to collect it.
The coincidence evidence of the first event relied upon to prove these facts in issue is set out in paragraph 8 of these reasons. As we have said, the prosecution contended that the first event coincidence evidence was relevant to prove the physical element of the offence charged, namely, that the applicant procured the importation by proxy of a prohibited substance.
At trial, the applicant’s defence was that he did not procure the physical importation of the substance into Australia. In a police interview, he read a prepared statement in which he asserted that he had ‘heard a rumour [that] some person and others import[ed] drugs into Australia’ and that he was ‘horrified that anyone would impute that [he had] been in any way involved in such conduct’. His defence contended that the bag was not his but, in fact, belonged to Harrison. Further, he did not ask Lemi to bring the suitcase to Australia for him and he did not tell Lemi not to give the bag to Harrison.
Section 98 of the Evidence Act 2008 (‘the Act’) relevantly reads as follows:
(1)Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless —
…
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
In pre-trial argument, the interlocutory appeal and before this Court in this application, the applicant conceded that the first event coincidence evidence possessed ‘significant probative value’ pursuant to s 98 of the Act.
Section 101(2) of the Act reads as follows:
Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
The narrow issue at trial and in this application is whether, as required by s 101(2), ‘the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused [or the applicant]’. If the coincidence evidence is not of this quality, it could not have been used against the applicant.
The trial judge ruled that the coincidence evidence of the first event was both of significant probative value and that the probative value of the evidence substantially outweighed any prejudicial effect it may have had on the applicant. Her Honour concluded that the evidence did rationally affect the probability that the applicant had instructed Lemi on 24 December 2013 to take the suitcase back to Australia, and this evidence also made it more likely that the suitcase belonged to the applicant and not Harrison.
The judge correctly recognised that the s 98 threshold of ‘significant probative value’ was high and well beyond mere probative value. In considering whether s 101(2) was engaged, her Honour concluded that the probative value of the coincidence evidence was ‘very high’. There were remarkable similarities between the two events. She indicated that she would give strong and detailed directions to the jury, to the effect that they were not to speculate as to the contents of the suitcase the subject of the first event and that they could not infer that it contained drugs. Viewed against the backdrop of this strong direction, the judge concluded that the probative value of the impugned evidence substantially outweighed the prejudicial effect it may have had on the applicant.
This application
As we have observed, the applicant accepts that the impugned evidence was relevant as coincidence evidence as contemplated by s 98 of the Act. It follows that the applicant accepts that the circumstances surrounding the first event had significant probative value in the trial. The applicant then contends that s 101(2) of the Act could not properly have been satisfied. There was no evidence that the suitcase brought into Australia on 18 December 2013 contained any drugs. The applicant suffered irreparable prejudice, as the jury would have speculated that, in fact, this suitcase also contained drugs and thus, the applicant had ‘got away’ with an importation on 18 December 2013. This prejudice could not be cured or sufficiently ameliorated by a direction and it was not substantially outweighed by the probative value of the relevant evidence.
The respondent contends that this ground is without merit. The trial judge applied the correct legal principles, did not take into account any irrelevant matters and had regard to all legal matters which she was required to consider.
Analysis
The Dictionary to the Act[2] defines the ‘probative value’ of evidence as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.[3] For present purposes, it is unnecessary to attribute any precise meaning to words which defy precision, as the applicant accepts that the impugned evidence possesses ‘significant probative value’ pursuant to s 98 of the Act. The issue in this application is not whether this evidence has a probative value that is significant, but whether that value also substantially outweighs any prejudicial effect it may have on the applicant.
[2]Contained in sch 2 of the Act.
[3]In Semaan v The Queen [2013] VSCA 134, Priest JA considered the phrase ‘significant probative value’ in the context of s 97 of the Act. He considered that attempts at reformulation were unlikely to add much to the plain meaning of the phrase. With this qualification, he concluded that ‘significant probative value’ meant something closer to ‘substantial’ than to ‘important’ or ‘of consequence’. In this respect, Priest JA set the bar a little higher than had been set in New South Wales where ‘substantial’ has been considered as ‘important’, ‘of consequence’ and ‘something more than mere relevance but something less than a substantial degree of relevance’. See, eg, R v Lockyer (1996) 89 A Crim R 457, 459; R v Lock (1997) 91 A Crim R 356, 361; R v AH (1997) 42 NSWLR 702, 709; R v Fordham (1997) 98 A Crim R 359, 370; R v F (2002) 129 A Crim R 126, 137 [22]; AW v The Queen [2009] NSWCCA 1, [47]; JLS v The Queen (2010) 28 VR 328, 333 [18]; KRI v The Queen (2011) 207 A Crim R 552, 558 [28]; Dupas v The Queen [2012] VSCA 328, [154].
In our view, the trial judge was correct to evaluate the probative value as ‘very high’. The events of 18 December were devastating to the applicant’s claims that on 24 December, he had nothing to do with the physical importation of the drugs into Australia. As we have said, the applicant flatly denied the physical element of the offence. The evidence of the first event allowed the jury to consider the 24 December event in context, and operated directly to rebut the applicant’s claim that he had nothing to do with the physical importation of the suitcase containing the drugs into Australia. The evidence was highly probative in assessing the probability that the applicant had supplied the suitcase, instructed Lemi to take the suitcase to Australia, and had told her what to do with it (and what not to do with it), as he had done with Haris-Peter. The chances of innocent coincidence are, in our view, miniscule.
We consider the fact that there was no evidence that the first suitcase contained drugs does not diminish this probative value. Regardless of the contents of the suitcase in the first event, the evidence remains that on 18 December 2013, the applicant, at Johannesburg airport, prevailed upon a young Australian woman, employed by the applicant under a false pretext, to take back to Australia a case supplied by the applicant, and to ensure its subsequent delivery to a nominated person — as was asked of another young Australian woman one week later. We agree with the trial judge’s observation that there was a ‘remarkable similarity between the two events’.
There is little doubt that the jury may have been tempted to speculate about the purpose of the first event — was it a fluky coincidence, was it a ‘dry run’, or was it a drug importation? Left untreated by her Honour in her comprehensive charge, there was force in the contention by the applicant’s counsel that the prejudicial effect of introducing the first event into evidence is itself high. The jury may well speculate that the first event was a drug run and that the applicant had ‘got away’ with importing a shipment of drugs on 18 December 2013. Counsel for the applicant submitted that no direction could overcome this prejudice.
Whilst the judge’s comprehensive directions could never extinguish the potential for improper prejudice, in our view, her clear and direct instructions to the jury served to ameliorate that potential:
Monica Haris-Peter gave evidence that before she left South Africa, Natte Brown Wedi gave her a suitcase at the airport which he wanted her to check in and bring to Australia. That suitcase did not belong to her. And Natte Brown Wedi told her that someone named Jason would collect it from her in Australia. That suitcase was too heavy and the accused paid extra for it to be sent. Essa Harrison had already left South Africa to return to Australia at that time.
The Crown relies on that evidence as being relevant only to the question of whether you are satisfied that the accused gave Rina Lemi a suitcase on 24 December 2013 which did not belong to her, that he wanted Rina Lemi to check it in and take it to Australia at a time when Mr Harrison had left South Africa, and whether he gave Ms Lemi instructions about what to do with it upon arrival in Australia.
The Crown submits that it is improbable that these two events, being so similar, occurred by chance.
If you accept Monica Haris-Peter’s evidence, I want to give you a warning about the use of that evidence. That evidence has been admitted for a very limited purpose. If you accept that evidence, you can only use it to determine whether you are satisfied that the accused gave Rina Lemi a suitcase which did not belong to her to take into Australia. You must not use that evidence for any other purpose.
There is no evidence and the Crown does not suggest that there were any drugs in that suitcase. When the prosecutor opened the case and in her final address, she expressly stated that the Crown does not suggest that there were any drugs in the suitcase which Monica Haris-Peter brought into Australia.
You must not speculate about what was in the suitcase. As I have told you, you must decide this case solely on the evidence which has been given in court. Nor are you to reason that because Natte Brown Wedi gave Monica Haris-Peter a suitcase which did not belong to her, if you find that he did give her a suitcase, that he is the kind of person who is likely to have committed the offence with which he has been charged.
The applicant contended that, despite the clarity and focus of this direction, the prejudicial effect of the evidence was such that it could never be substantially outweighed by its probative value. We disagree. Any evidence probative of an accused’s guilt is, to that extent, prejudicial. In our view, the ‘prejudice’ to the applicant’s case from this evidence flowed from its devastating probative value:
If the prejudice lies in [the evidence’s] probative value, it is not an impermissible prejudice.[4]
The ‘unfair’ residual prejudice — namely, the danger of impermissible speculation that the applicant had ‘got away’ with a drug importation on 18 December 2013 — was addressed by the judge directly in the passage from her Honour’s charge that we have set out in the preceding paragraph.
[4]Derwish v The Queen [2016] VSCA 72, [76].
In his written case, the applicant cited a passage from Gleeson CJ and Gummow J’s judgment in Gilbert v The Queen:[5]
The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.[6]
Whether prejudice is curable or capable of amelioration to an acceptable degree is a question of fact and degree which will vary from case to case. Our conclusion that the unfair residual prejudice in this case was amenable to significant amelioration is a product of experience, intuition, and the clarity and force of the direction itself. In this ameliorated form, we are confident that the very high probative value of the evidence significantly outweighed any prejudicial effect it may have had on the applicant.
[5](2000) 201 CLR 414.
[6]Ibid 420 [13] (Gleeson CJ and Gummow J).
Conclusion
In summary, we consider that the applicant has failed to demonstrate any error under his ground of appeal. We are of the view that the trial judge applied the correct test under s 101(2) of the Act, took into account all relevant considerations, was not distracted by irrelevant considerations, and ultimately came to a decision unaffected by error.
Leave to appeal against conviction is refused.
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