Stewart v DPP (Cth) [2014] VSCA 213 (10 September 2014)

Last Updated: 11 August 2022

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0188

DAVID JAMES STEWART	Applicant

v

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)	Respondent

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JUDGES:	OSBORN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 September 2014
DATE OF JUDGMENT:	10 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 213
JUDGMENT APPEALED FROM:	DPP (Cth) v Stewart [2014] VCC 1404 (Judge Cannon)

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CRIMINAL LAW – Interlocutory appeal – Application for review of refusal to certify under s 295 of the Criminal Procedure Act 2009 (Vic) – Evidence – Importation and/or possession of border-controlled substance – Trial judge’s ruling on admissibility of evidence of possession of non-border controlled substance – Whether evidence properly characterised as circumstantial evidence or whether tendency evidence – Whether tendency evidence admissible as rebuttal evidence pursuant to s 101 of the Evidence Act 1995 (Cth) – Whether tendency evidence has significant probative value pursuant to s 97 of the Evidence Act 1995 (Cth) – Whether probative value of evidence outweighed by prejudicial effect – Application allowed but leave to appeal refused – Criminal Procedure Act 2009 (Vic) ss 295, 295(3)(a), 296, 296(4), 297, 297(1)(b) – Evidence Act 1995 (Cth) ss 97(1)(b), 101, 101(3), 137 – Velkoski v The Queen [2014] VSCA 121, R v Zhang [2005] NSWCCA 437.

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APPEARANCES:	Counsel	Solicitors

For the Applicant	Mr M Tovey QC with Ms C Boston	Stephen Andrianakis & Associates

For the Crown	Mr J Dickie	Director of Public Prosecutions (Cth)

OSBORN JA:

1 The applicant seeks leave to appeal an interlocutory decision of her Honour Judge Cannon, given in the County Court at Melbourne on 27 August 2014.

Application for review of refusal of judge to certify

2 A jury has not yet been empanelled in the applicant’s trial and the question raised is one which the Crown conceded to the trial judge has the potential to substantially weaken the prosecution case depending on its resolution. This concession reflects the requirements of s 295(3)(a) of the Criminal Procedure Act 2009 (‘CP Act’).

3 Despite this concession, the trial judge refused to certify pursuant to s 295 of the CP Act. The applicant now seeks to review that decision pursuant to s 296 of the CP Act and, if successful, seeks leave to appeal pursuant to s 297.

4 In my view, the Crown’s concession was properly made and the evidentiary issue involved is one which will fundamentally affect the forensic realities of the trial.

5 Section 296(4) makes clear that the requirements of s 295(3)(a) must be regarded as central to the certification issue.

6 The trial judge refused to certify because she formed the opinion that her ruling was not attended by sufficient doubt to warrant certification. I respectfully disagree. The evidentiary issue raised is a relatively novel one and the proper application of the relevant provisions of the Evidence Act 1995 (Cth) is not free from some real debate.

7 In the circumstances, the central question becomes whether leave to appeal should be granted under s 296(4) having regard to s 297. I turn then to this question.

Leave to appeal

8 The applicant submits that in terms of s 297(1)(b) of the CP Act the determination of the appeal against the interlocutory decision may resolve an issue of evidence necessary for the proper conduct of the trial and reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial. The proper characterisation of the issue under the Evidence Act is central to its resolution.

The evidentiary issue

9 The point in issue arises in the following way. The applicant is charged with knowingly importing a border-controlled substance, namely cocaine. In the alternative, he is charged with attempting to possess such substance. He is also charged with two charges of possession of steroids found in a cupboard at his home.

10 The applicant has pleaded guilty to the charges relating to steroids and not guilty to the charges relating to cocaine.

11 It is unnecessary for present purposes to summarise the evidence upon which the Crown relies in detail, save to say that it includes evidence of text messages which may be understood to relate to arrangements concerning the importation of drugs, the interception of a parcel sent from Los Angeles containing cocaine, and the arrest of the applicant with two blocks in his trouser pockets of a substance which had been substituted in the parcel by the investigating authority.

12 The defence case is that the only matter in issue is whether the applicant knew that the substance was anything other than steroids. Steroids are not a border-controlled substance.

13 Despite the applicant’s pleas of guilty, the defence seeks to have adduced evidence of the finding of the steroids as circumstantial evidence in the trial of the cocaine charges. It is submitted that that evidence will tend to show that the applicant believed the parcel contained steroids and will assist in raising reasonable possibilities consistent with innocence as to the meaning of intercepted text messages.

14 As her Honour recorded:

... given the central issue in the trial as enunciated by Mr Tovey, the steroid evidence could only ever be relevant to the Accused’s state of knowledge and intention as to the contents of the parcel he had imported and which he expected to be delivered to him. In the course of discussion on Monday 25 August, in part answer to a question from me, Mr Tovey said ‘...no doubt I would be saying to the jury that if you look at the actual words that are used in the texts, it becomes reasonably clear that what’s being discussed in all those communications, other than the final set of communications, is the steroids and that it’s apparent that the Accused man has an association with steroids because he has got them at home.’ ... He also said that he would not be saying to the jury that the only substance with which Mr Stewart had an association was steroids. However, as I understand the Defence’s position they would not be referring to any other substances with which the Accused had an association if the scales evidence were excluded.^[1]

15 In submission to this Court, counsel for the applicant accepted that the steroids evidence was properly characterised as tendency evidence. It is, by inference, evidence of the conduct of a person demonstrating that the person had a tendency to act in a particular way, namely to take possession of steroids, and/or evidence of the conduct of a person demonstrating that the person had a particular state of mind, namely when considered with other evidence, evidence forming a basis for concluding it is reasonably possible that the applicant believed that the parcel contained steroids.

16 In this context, counsel for the applicant submitted that the steroids evidence is of substantial probative value, meeting the requirements of s 97(1)(b) of the Evidence Act:

97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(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.

(2) Paragraph (1)(a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under section 100; or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

17 It may be accepted that in order to raise reasonable possibilities, the evidence may be of significant probative value even if it lacks the degree of ‘underlying unity’, or similarity of ‘modus operandi’ necessary before tendency evidence can ordinarily be adduced by the Crown.^[2]

18 The Crown accepts that the steroids evidence is admissible as part of the defence case but submits that, if the steroids evidence is to be adduced by the defence, the Crown should be permitted to adduce evidence that the same cupboard which contained the steroids was also found to contain a set of scales with traces of cocaine upon them. Such traces were found in part in the battery section of the scales tending to rebut any suggestion that the cocaine may have been left as the result of accidental contact.

19 It is submitted by the Crown that it is necessary to adduce this evidence to place the steroids evidence in a proper context and to rebut the possible inference from the steroids evidence that the applicant was interested in, and associated with, steroids only. In turn, the inference as to the applicant’s state of mind which the defence seeks to draw relating to the parcel imported from Los Angeles would be rebutted.

20 The trial judge ultimately concluded as follows:

Bearing in mind the central issue in this trial and the stance taken by Defence, in my view the Prosecution ought be entitled to adduce evidence as to the cocaine on the scales which were found next to the vials, vials which the Accused admits were his. It has the potential to show that the Accused was not only connected to steroids but he had some connection to cocaine, the very substance which was in the parcel intercepted and which he expected to receive.
Defence cannot have it both ways. If they insist on the steroid evidence being adduced to assist in the Accused giving an innocent explanation for the coded text messages and having packages of white powder down his trousers or in support of a relevant belief, then the Prosecution ought be entitled to neutralise such evidence with what else was found in the same cupboard next to the vials of steroids.^[3]

21 Her Honour further held that the correct characterisation of the scales evidence was circumstantial evidence which would be adduced by way of rebuttal and not tendency evidence.

22 In my view, the scales evidence was tendency evidence in the same way as the steroids evidence. The Crown does not resist this conclusion on appeal.

23 Furthermore, in my view, the scales evidence meets the requirement of significant probative value imposed by s 97(1)(b)^[4] of the Evidence Act because it is, in effect, of equal significance to the steroids evidence as providing a circumstantial context for inferences as to the applicant’s relevant belief. It is true that there is no evidence of a direct temporal association between use by the applicant of the scales found at his home and the time of the importation, but neither is there such evidence within the Crown case of the origin of the steroids.

24 It is also true that, as the prosecutor concedes, the scales evidence does not have sufficient probative effect to entitle the Crown to lead it in proof of its own case. But this does not mean it cannot have significant evidentiary value in rebutting inferences which might otherwise be drawn from circumstances of which the defence adduces evidence.

25 In effect, it rebuts the implied proposition that there was a reasonable possibility of an underlying unity or consistent modus operandi involved in both the applicant’s admitted association with steroids and the importation.

26 The case is not, as the applicant submits, on ‘all fours’ with R v Zhang.^[5] The evidence is not put forward by the prosecution as coincidence or tendency evidence as part of its own case.

27 It was proper for her Honour to conclude as follows:

In circumstances where the Accused admits to associations with steroids, I would direct the jury that before they could use the scales evidence in the way that the Prosecution contends they would have to be satisfied beyond reasonable doubt that the Accused was connected or associated with the cocaine found on the scales. I do not accept that I would have to direct the jury that they could never arrive at such a conclusion in view of the fact that the scales were in a cupboard next to vials which the Accused admits were his in a dwelling occupied by him and in view of the location of the traces of cocaine on the scales.^[6]

28 Significantly for present purposes, the character of the scales evidence as rebuttal evidence directly affects the application of s 101 of the Evidence Act:

Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution adduces to expl0ain or contradict tendency evidence adduced by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

29 In my view, the scales evidence falls within s 101(3). It explains tendency evidence which is proposed to be adduced by the defence and tends to contradict the inferences which might otherwise be drawn from that tendency evidence.

30 Lastly, the scales evidence must meet the requirements of s 137 of the Evidence Act:

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

31 The probative weight of the evidence is that it answers or is capable of being regarded as answering, the steroids evidence upon which the defence relies for tendency purposes. It explains the context in which the steroids were found and tends to rebut inferences that might otherwise be drawn from the finding of the steroids.

32 The prejudice associated with the scales evidence is materially reduced by the fact that the defence is premised upon the proposition that that applicant was in illegal possession of the steroids. Her Honour was substantially correct to conclude as follows:

Therefore, I am of the view that the scales evidence is relevant to the central matter in issue in this trial in view of the way that the Defence are to rely on the steroid evidence. The scales evidence is relevant and probative to rebut any suggestion that the Accused was only associated with steroids and its probative value is not outweighed by the danger of unfair prejudice to the Accused. It is not unfairly prejudicial to the Accused to point to a connection with cocaine in a bi[d] to rebut evidence which points to his connection with steroids at the time of the alleged offending. The fact that the cocaine is on a set of scales, which may suggest the Accused is trafficking cocaine, is prejudicial but the Prosecution will not be suggesting that the Accused trafficked in cocaine and the jury will be told the limited use that they can make of the evidence if they accept it. I do not accept that such evidence, if accepted by the jury, would lead them inexorably to the conclusion that the Accused is guilty of Charges 1 and 2. It simply serves to potentially neutralise the steroid evidence and place the alleged offending in a context which might otherwise be misleading.^[7]

33 Subject to appropriate direction from the trial judge, the danger of unfair prejudice to the applicant does not outweigh the probative value of the scales evidence.

Conclusion

34 It follows that in my view her Honour’s ruling was, in substance, correct. The evidence is admissible as rebuttal evidence pursuant to the tendency evidence provisions of the Evidence Act.

35 The proposed grounds of appeal are as follows:

Her Honour was in error in ruling that evidence of traces of cocaine found on scales at the defendant’s flat, was not tendency or coincidence evidence.
The evidence does not meet the tests stipulated pursuant to sections 97, 98 and 101 of The Evidence Act.
Her Honour misdirected herself with respect to the assessment and weighing of:

The prejudicial effect of the evidence; and
The probative value of the evidence; and

Her Honour incorrectly concluded that the probative value of the evidence was not outweighed by its prejudicial effect.

36 Whilst ground 3 has substance, none of the other grounds are made out and no vitiating error has been established in her Honour’s ruling.

37 In turn, the grant of leave to appeal would be nugatory and I would refuse such leave.

PRIEST JA:

38 I agree with Osborn JA.

BEACH JA:

39 I agree that the application for leave to appeal should be refused for the reasons given by Osborn JA.

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^[1] Commonwealth DPP v Stewart [2014] VCC 1404, [15] (‘Ruling No 1’) (emphasis added).

^[2] Velkoski v The Queen [2014] VSCA 121, [171].

^[3] Ruling No 1 [16]–[17].

^[4] Section 97(1)(a) does not apply by reason of s 97(2).

^[5] [2005] NSWCCA 437.

^[6] Ruling No 1 [24].

^[7] Ruling No 1 [28].

Authorities Cited4

Referred to (4)