R v Stewart[2004] QSCPR 2

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application under s 592A of the Criminal Code for an order under s 596 that the existing indictment be quashed and under s 597A that there be three separate trials of eight drug related charges presently joined in one indictment.  They arise out of three searches conducted at approximately six-monthly intervals at three separate properties said to have been occupied or stayed in by the accused, Mr Stewart.  A separate issue about the admissibility of some evidence of a witness called Mr Massingham is unnecessary to decide at this stage. 
2. [2]
   The facts were summarized usefully in the written submissions for the accused which were accepted as accurate by the Crown.  I have relied principally on that summary for the following statement of the relevant evidence. 

Relevant facts

3. [3]
   The accused is indicted in respect of eight charges brought under the Drugs Misuse Act 1986.  The evidence relating to those charges was largely gathered during searches conducted by police on three separate occasions at three separate locations: on 21 November 2001 at 19 Britt Court, Carbrook, on 3 May 2002 at 2039 Beaudesert Road, Calamvale and on 17 December 2002 at 50-66 Ryans Road, Northgate.

21 November 2001 Raid:

4. [4]
   Charges: 

Count 1: 21 July 2001 – 22 November 2001 Trafficking in Methylamphetamine.

Count 2: 21 November 2001 Possession of Methylamphetamine.

Count 3: 21 November 2001 Possession of Cannabis Sativa.

5. [5]
   On 21 November 2002, police executed a search warrant on premises situated at 19 Britt Court, Carbrook.  The accused was detained there and he indicated to police officers that he and four other persons lived at the residence, that the property had been rented in the names of himself and his “ex de facto” and that the front bedroom was his room.  He had been located asleep in that front bedroom with his current girlfriend.  In that bedroom police located a black “Surf Gear” backpack (under a computer bench), which contained a black toiletry bag which in turn contained four clipseal plastic bags which contained powder or a crystal substance, subsequently identified as containing methylamphetamine, a “Spicer’s Olympic Stripe Brand” exercise book marked “Peter”, a grey vinyl case which contained two tupperware containers which each contained a white powder and a clipseal plastic bag containing an orange crystal substance.  Each of the powder and the orange crystal substance was later identified as containing methylamphetamine.  There was also a black Lynx sachet in which was a clipseal plastic bag containing cannabis sativa. 
6. [6]
   Also, in that bedroom, police located in the top drawer of the chest of drawers two clipseal plastic bags containing cannabis sativa, a “Fisherman’s Friend” tin containing a clipseal plastic bag containing a white powder that was subsequently identified as containing methylamphetamine and a clipseal plastic bag containing a white rock substance subsequently identified as containing some heroin, monoacetylmorphine and acetylcodeine.  The police also found there four 1 ml syringes, each containing liquid subsequently identified as containing methylamphetamine and a white porcelain bowl, containing cannabis sativa, a “Tally Ho” packet and, on the floor beneath a computer table, a set of digital scales that were subsequently found to exhibit a residue in which methylamphetamine was detected. 
7. [7]
   The contents of the exercise book referred to in para [4] above have been extensively photographed and the entries in it, said to be a ledger of transactions, appear to provide the substantial basis in the context of the other evidence for the trafficking charge.  A fingerprint of the accused’s right thumb was identified on a page headed “Mick B”.

3 May 2002 Raid:

8. [8]
   Charges:       

Count 4: 3 May 2002 Possession of Methylamphetamine  

Count 5: 22 November 2001 – 4 May 2002 Production of Methylamphetamine.

9. [9]
   On 3 May 2002 police executed a search warrant on premises at 2039 Beaudesert Road, Calamvale.  The accused was detained there by police and he indicated to them that he was the occupier of the premises.  A clipseal plastic bag was located inside a tissue box in a bedroom at this residence and this contained a crystalline substance.  The accused stated that he shared that room with his girlfriend.  Some syringes were also found in plastic containers in the house. 
10. [10]
    In an adjoining bedroom, police located a monitor which was apparently linked to video cameras mounted on the front of the residence and also what appeared to be a UHF scanner linked to a speaker.  A green plastic garbage bag was located, partially buried under some rubbish, in the rear yard which contained a plastic container containing 190 Telfast tablets (Telfast is said to contain a pseudo-ephedrine which may be used to produce methylamphetamine), a plastic box containing a brown substance and a cloth bag containing jewellery.  Other items, which included some chemicals and equipment, were seized.  Of the eight items which were analysed after this search, methylamphetamine was only detected in two items, no dangerous drugs were detected in the other items but one could conclude that at least some of the items had been used in the production of methylamphetamine.

17 December 2002 Raid:

11. [11]
    Charges: 

Count 6: 3 May 2002 – 18 December 2002 Production of Methylamphetamine.

Count 7: 17 December 2002 Possession of a document containing instructions                                                         about the way to produce Methylamphetamine.

Count 8: 3 May 2002 – 18 December 2002 Possession of equipment and                                            chemicals that had been used in connection with the production of a                                                         dangerous drug.

12. [12]
    On 17 December 2002, police executed a search warrant on premises at 50-66 Ryans Road, Northgate.  In the course of their doing so, the accused was detained, along with two females and three other males.  It appears that this property included the business premises of “UFO Auto Recyclers & Repairers”.  The accused indicated that for the previous two nights he had slept in a bedroom located at the back of what is described as the spray painting section of the premises. 
13. [13]
    Several items of equipment and chemicals were found in various locations at the site.  A search of the residential area at 50 Ryans Road Northgate disclosed in the kitchen: two sets of scales, two Breville brand electric grinders and, in a bedroom leading off the main bedroom area which contained computer equipment, personal papers bearing the name Peter Stewart and a CD bearing the handwriting “Go Hard Terry’s copy”.  A fingerprint of the accused’s right thumb was also located on the inside of a glass funnel at the premises.   The potential significance of these items to the Crown case can be gleaned from two analysis certificates and related statutory declarations of Peter John Valelly dated 7 March 2003.  They suggest that the equipment and chemicals were used in the production of methylamphetamine. 

Submissions

14. [14]
    In arguing that the eight charges were, or formed part of, a series of offences of the same or similar character for the purposes of s 567 of the Criminal Code and that there was the type of nexus between the counts required by R v Cranston [1988] 1 Qd R 159, Mr Lewis for the Crown pointed to these features of the evidence: 

    1. Each raid took place at premises either occupied by the accused or at which he was staying;
    2. At each raid methylamphetamine was located;
    3. At each of the residences drug paraphernalia was located including items that may be suspected reasonably of being used in the production of a dangerous drug (coffee grinders, scales with drug residue, chemicals, instructions on how to produce methylamphetamine, glassware);
    4. Fingerprints of the accused were located on the exercise book located in the first raid and a glass funnel located on the third raid.
15. [15]
    He also submitted that the evidence from all the raids was relevant to rebut any inference or defence that Mr Stewart’s presence at the premises was innocent, the case being otherwise circumstantial as to his connection with the items seized in the raids.  It was also relevant to this aspect of his submissions that, on each occasion, that the accused’s premises were raided, there is evidence that other people used the same premises.  In other words he submitted that the evidence on all charges was admissible on each to assist the jury to decide whether or not this accused was “the unluckiest man in Queensland” because every time the police came to his premises amphetamines or the remnants of making them were found, as opposed to isolating the evidence in separate trials where, in a vacuum, a jury might accept that one of the other people present at the premises might have had an involvement.
16. [16]
    Mr Long’s submission for the accused is that there is an insufficient connection between the offences relating to each raid, which are essentially based on what was found at three separate locations at approximately six monthly intervals, and, in the case of the trafficking charge, a sufficient lack of similarity of character, such as to preclude a finding of the requisite nexus, or at least to make such a finding doubtful, as between the charges relating to the separate raids.  He also submits that the evidence relating to each raid (and the offences charged from each) is not admissible in proof of the other charges on the indictment, referring to Pfennig v The Queen (1995) 182 CLR 461; R v Wackerow [1998] 1 Qd R 197; R v O'Keefe [2000] 1 Qd R 564 and R v S (2001) 125 A Crim R 526, so that in the circumstances there is the risk of impermissible prejudice from propensity reasoning which may not be alleviated by a direction of the trial judge as to separate consideration of these groups of offences: cf. R v Himstedt, unreported, CA No 227 of 1993, 18 November 1993.

Offences of a Similar Character

17. [17]
    In my view it is appropriate to describe the offences charged in this indictment as forming part of a series of offences of a similar character.  I would not conclude that they were committed in the prosecution of a single purpose on the evidence summarised above and no submission was made to me that that was the case.  They are all offences dealing with illegal drugs found on premises associated with the accused and all, bar one, charge the accused with the possession or production of or trafficking in methylamphetamine.  The exception is the charge of the possession of cannabis sativa arising from the first raid on 21 November 2001 but there would be little sense in severing that charge from the two other charges arising out of that raid of trafficking in methylamphetamine and possession of methylamphetamine.  The cannabis was found at the same time and in the same place as the evidence relevant to the other two counts; see Cranston at 164 at ll. 33-39. 
18. [18]
    Nor, to my mind, does the seriousness of the trafficking charge prevent it from being an offence of a similar character from the other counts alleging possession and production of illegal drugs.  It is true that Brennan J said in Harriman v The Queen (1989) 167 CLR 590, 593 that “the offences revealed by evidence of prior sales and use of heroin are not offences of the same kind or character as the offence of being knowingly concerned in the importation of heroin”.  His Honour said that, however, in the context of examining whether the evidence, the admissibility of which was challenged in that case, was evidence of similar facts.  He was not examining the applicability of a section such as s 567(2) of the Criminal Code, or the English equivalent of which it was said in R v Kray [1970] 1 QB 125, 131E that:

“All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together.”

19. [19]
    Mr Long also submitted that the approximate six monthly intervals between the raids and their different locations were relevant to any conclusion that the offences were of a similar character, seeking to distinguish the facts from R v Barrow [2001] 2 Qd R 525 where the interval between the raids was about eight weeks and there were two different locations.  That is so, but the differences are not so much here as to persuade me that they are not similar offences.

Should the charges be severed?

20. [20]
    The charge of trafficking is based partly on evidence contained in the exercise book referred to above which is claimed to show information in the form of a ledger evidencing the sale of drugs.  One page of the book bears the accused’s right thumb print.  The argument of the accused is that, with this charge especially, the joinder of all the charges creates a real risk that a jury would engage in propensity reasoning because of the evidence derived from the later charges. 
21. [21]
    The test for determining the admissibility of propensity evidence is whether the probative force of the evidence transcends its merely prejudicial effect; see Pfennig, 481-483, but cf. the views on that issue of Toohey J, 500-507 and McHugh J, 515-517 and 528-531.  That test was adopted by Macrossan CJ in Wackerow at 198-199 and his Honour’s views were approved by the Court of Appeal in Barrow at [13], [42]. 
22. [22]
    In Wackerow, 204 and O'Keefe, 565 at [1]-[2], 566 at [6] per Davies JA and 568-574 at [12]-[27] per Thomas J, the Court of Appeal also had to grapple with an argument that Pfennig only permitted the admissibility of propensity evidence if that evidence of itself was reasonably capable of excluding all innocent hypotheses.  In seeking to resolve the passages supporting that argument Thomas J concluded in O'Keefe, 573-574 at [27]: 

“In consequence it seems to me that the only sensible resolution of these passages requires the trial judge to address two questions:

1. (a)
   Is the propensity evidence of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged? The observations of Pincus JA in Wackerow are helpful in addressing this particular question; and
2. (b)
   If the propensity evidence is admitted, is the evidence as a whole reasonably capable of excluding all innocent hypotheses? This would have to be answered on the assumption of the accuracy and truth of the evidence to be led. If the judge thought that the evidence as a whole was not reasonably capable of excluding the possibility that the accused is innocent, then the accused should not be exposed to the possible risk of mis-trial by a jury that might give undue prejudicial weight to propensity evidence. The exercise is to be undertaken with special care because of the potential danger of misuse of such evidence by the jury.”

23. [23]
    An earlier approach expressed in De Jesus v The Queen (1986) 61 ALJR 1, 3 was that where evidence of one count on an indictment was not admissible as evidence on other counts on the same indictment then the general rule was that an application for separate trials should be granted, referring to a statement to that effect by Lord Cross of Chelsea in R v Boardman [1975] AC 421, 459.  It still seems to me to be important, in applying the “broader principle” of comparing the probative force of the evidence to its prejudicial effect, to examine whether the evidence on each of the charges in this indictment would be admissible in respect of each of the other charges as one means of assessing its probative force and of establishing the relevant “nexus” among the offences required by the Court of Criminal Appeal in Cranston, 164-165.  
24. [24]
    In this case, where the evidence linking the accused to the offences charged is largely circumstantial and there is a likely argument that the Crown has not established to the necessary degree that there is no innocent explanation for the accused’s connection with the illegal drugs, the exercise book and the other equipment and chemicals, the evidence relevant to all the counts seems to me to be admissible to disprove coincidence, accident or innocent association, some of the recognised circumstances in which similar fact evidence is admissible as probability rather than propensity evidence; see Makin v Attorney-General (NSW) [1894] AC 57, 65-66; De Jesus, 10 at C-D per Dawson J; Harriman, 595-596 per Brennan J, 597-600, 602-603 per Dawson J, 613-614 per Gaudron J; Hoch v The Queen (1988) 165 CLR 292, 294 and Pfennig at 502, 524-525. 
25. [25]
    The potential for an argument that the accused could have been innocently associated with the evidence seized exists because other people lived in or were associated with each of the premises used by him. 
26. [26]
    In rather similar circumstances the Victorian Court of Appeal in R v Mateiasevici [1999] 3 VR 185, 192 at [25] upheld the admissibility of evidence that the appellant was in possession of a heroin press at a date later than the offence of heroin trafficking with which he was charged on the basis that evidence of a subsequent event is frequently led to negate coincidence and the mere fact that it is evidence of a subsequent event does not deprive it of its probative force.  See also R v Hinton (2000) 155 FLR 139, 145 at [32]-[34] per Spender J and Norris v The Queen (2001) 121 A Crim R 227, 230 at [13].
27. [27]
    For these reasons it is fair to conclude that the probative force of the evidence of the charges stemming from each raid transcends its merely prejudicial effect.  It is properly regarded as a step in the proof of the prosecution case and is specifically connected with the likely issue whether the Crown has disproved any coincidence or innocent association between the accused, the illegal drugs and the associated documents and equipment; see Pfennig at 481-483.  Coupled with the other evidence referred to above that evidence also seems to me to be reasonably capable of excluding all innocent hypotheses; see O'Keefe at 573 [27] (b). 

Should there be a warning?

28. [28]
    In those circumstances, where the charges should not, in my view, be severed, it will be desirable to give a clear warning to the jury as to the use to which the evidence may be put.  As McHugh J said recently in KRM v The Queen (2001) 206 CLR 221, 235-236 at [40]:

“It is possible that, in some cases of similar fact evidence, as opposed to propensity evidence, a propensity warning or other warning may be required although the evidence is admissible in respect of all counts. In the true similar fact case, evidence is often admitted to prove that the accused has been associated with so many similar deaths, injuries or losses that it is highly improbable that there is any innocent explanation for the accused's involvement with the series of events. These cases depend on probability reasoning and not propensity reasoning, the propensity of the accused usually being established only by the verdict of guilty. The risk of prejudice, therefore, is not from propensity reasoning but from the danger that "[c]ommon assumptions about improbability of sequences are often wrong". It may be necessary to warn the jury about too readily making such assumptions rather than giving a propensity warning. In other similar fact cases, the facts of one or more events in the series may be admitted or be the subject of a conviction or convictions. If the evidence is admissible only as true similar fact evidence - evidence which relies on probability reasoning - it may be necessary to give a propensity warning in respect of the facts or convictions admitted or proved.”

29. [29]
    As to the need for a warning see also Mateiasevici at 193-194 at [28]-[32]. 
30. [30]
    Accordingly the application that there be separate trials in relation to the charges arising out of each of the three separate searches is dismissed.