R v Thurnwald[2021] QSCPR 2

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is charged on indictment with:
   1. one count of trafficking in dangerous drugs (between 1 August 2018 and 23 January 2019) (count 1);
   2. two counts of possessing dangerous drugs, on 22 January 2019 (counts 2 and 3);
   3. seven counts of supplying dangerous drugs, on 22 January 2019 (counts 4 to 10); and
   4. one count of possessing things used in connection with trafficking (count 11).

2. [2]
   The trial is listed to commence on 10 May 2021.
3. [3]
   The Crown has flagged its intention to lead evidence of the applicant’s prior convictions for drug offending, in proof of the charges against the applicant on the indictment, on the basis that it is admissible similar fact evidence.   The applicant applies, under s 590AA of the Criminal Code, for a ruling that the evidence be excluded.

Factual circumstances of the alleged offending the subject of indictment 1589/20.

4. [4]
   The following summary is taken from the draft statement of facts (part of exhibit 1) and adopted for the purposes of determining the present application.
5. [5]
   The alleged offending was detected as a result of a police operation investigating the importation of border-controlled substances through the Australia Post system.  On 2 August 2018, the Australian Federal Police intercepted a package addressed to the applicant at an address in Maroochydore where the applicant and his partner, Ms Olivero, lived.  The package contained just over 250 grams of MDMA powder (which contained a total pure weight of 180.5 grams, being 72.1% purity).
6. [6]
   On 18 January 2019, Australian Border Force officers intercepted two envelopes entering Australia.  One was addressed to Ms Olivero’s parents, at an address at Sunrise Beach, and had in it two clip seal bags containing a drug referred to as 2C-B; the other was addressed to Ms Olivero, at her Maroochydore address, and contained 12,600 “tabs”.  No drugs were detected on these tabs.
7. [7]
   On 22 January 2019 the police arranged for replicas of these envelopes to be delivered to the Maroochydore and Sunrise Beach addresses.
8. [8]
   Also on 22 January 2019, the police conducted a search of the defendant and Ms Olivero’s home at Maroochydore.  During the search, the following things were found:

   1. In the TV cabinet in the lounge room:
      3. (i)
         an express post envelope, addressed to what is said to be a false name, containing just over 10 grams of MDMA, in 13.9 grams of substance, wrapped in a tea towel (count 4);
      3. (ii)
         six express post envelopes, also addressed to false names, containing tabs of Flualprazolam (similar to Alprazolam, a schedule 2 drug) (counts 5-9); (iii) a small quantity of 2C-B (count 10).
   2. In various other places in the house:
      3. (i)
         four tabs of Flualprazolam (count 2);
      3. (ii)
         40 grams of cannabis (count 3)
      3. (iii)
         the range of things the subject of count 11, including packing tape, scales, a labelling machine, clip seal bags, mobile phones, a package of replica LSD stamps, $1,190 cash, international postage stamps, other postage stamps, tracking labels and envelopes.
9. [9]
   The draft statement of facts states that the envelopes found in the search “listed false contact names and various local businesses as the sender(s) of the envelopes.  Police contacted each of the business owners.  The businesses confirmed that they did not know the defendants and did not have any records of the false names the defendants used as the return to sender contact.  Similarly, the police discovered that the name each envelope was addressed to [was] also false.”
10. [10]
    A search was also conducted of Ms Olivero’s parents’ home.  The only thing of relevance found was Ms Olivero’s handbag with one “narrow strip of coloured material” which contained Flualprazolam.
11. [11]
    Two of the mobile phones found during the search belonged to the applicant and the other two belonged to Ms Olivero.  Four messages found on Ms Olivero’s phone are referred to in the draft statement of facts at [16] and [17]:  two of these refer to Ms Olivero and the applicant using drugs, and the other two, sent by Ms Olivero, refer to money owed/paid by people in relation to what may be inferred is drugs.   It is said that police also found videos of the applicant and Ms Olivero “engaging in drug use either together or with other associates”.  No relevant messages were found on the applicant’s phone(s).  What was found on his phone was “a series of photographs which depicted tabs of Flualprazolam being packaged”, which the metadata indicates were taken on 16 January 2019.
12. [12]
    Ms Olivero’s financial records, analysed by the police, revealed nine unexplained deposits, including foreign currency conversion fees on two occasions.
13. [13]
    Both the applicant and Ms Olivero were interviewed by the police.  Ms Olivera denied knowledge of the drugs found, and denied any knowledge of importing drugs from overseas.  She suggested her recently deceased housemate, Taylor, may have been the one responsible for purchasing and distributing the drugs which were found.  She said the label maker and other items were for a “vape” business she and the applicant were attempting to establish, and that the money found was from her grandmother and her savings.  
14. [14]
    In his interview, the applicant told police he was aware of some of the drugs found (the statement of facts is unclear, but seems to refer to the MDMA found in the lounge room, wrapped in a tea towel) “and chose not to do anything about it”.  Otherwise, like Ms Olivero, he denied knowing anything about the other drugs and things located, and said his recently deceased housemate, Taylor, owned the drugs.  He also said he and Ms Olivero were establishing a vaping business.   There were some things found in the search consistent with that.
15. [15]
    The period of the trafficking is alleged to be from 1 August 2018 to 23 January 2019 – a period spanning from the date the first package, addressed to the applicant, was intercepted, to the date of the search.  The Crown have not yet provided particulars of the trafficking.  The Crown prosecutor would not say that the messages identified in the draft statement of facts were the only relevant messages.  However, as it presently stands, the charge of trafficking is brought on the basis of an inference to be drawn from the combined circumstances of the intercepted packages; the packages of drugs found at the applicant and Ms Olivero’s home; the other paraphernalia found at their home; and the phone messages and videos.
16. [16]
    The court was informed Ms Olivero has pleaded guilty – but it is not apparent what offence(s) she was convicted of, nor what the factual basis of her plea and sentence was.  Although Ms Olivero is described, in the draft statement of facts, as a co-offender (the document refers to “the defendants”), the present indictment names only the applicant.

The challenged evidence

17. [17]
    At the applicant’s upcoming trial, the Crown proposes to call evidence of four prior convictions of the applicant for drug offending, on the basis that the factual circumstances of the offending leading to those convictions is similar fact evidence.
18. [18]
    Relevantly:^[1]

    1. On 26 November 2013, the applicant was convicted in the Noosa Magistrates Court of a range of drug offences (including possession, supply and publishing or possessing instructions for producing dangerous drugs) which were discovered upon a search of his home on 3 August 2013.   He was 18 at the time.  The drug was cannabis.  The applicant made admissions at the time of the search that the cannabis seeds found he had imported from overseas through the mail.  He also made admissions to selling cannabis to his friends “and vice versa”, and that he had been doing that for the last four months.  An examination of his phone revealed that he had a number of photos and videos of cannabis plants.  He was sentenced to probation for 18 months, and no conviction was recorded.
    2. On 19 March 2015, the applicant was convicted in the Maryborough District Court of more drug offences, including trafficking in a dangerous drug, producing a dangerous drug, possession of drugs and things for use in connection with a drug offence.  He was 18-19 at the time of these offences.  The offences primarily related to cannabis.   The applicant was charged on this occasion jointly with Ms Olivero, who was 17 at the time.  Together, they were growing cannabis and selling it in bulk, over a period of about five months, at a “wholesale and retail” level (having regard to the amounts).  A tick sheet was found, with amounts totalling over $24,000.  One of the names on the list was Ms Olivero’s, with an additional amount of about $16,000 next to her name.  This was said by her counsel to be an amount owed to her (by the business) because she had used her own credit card to buy some of the things they needed to grow cannabis.^[2]  There were photographs and videos found which showed cannabis plants.  They were also found in possession of three different types of hallucinogenic drugs, which it was agreed were possessed for a commercial purpose.  These were described, by

Ms Olivero’s counsel, as “party drugs” which were “actually delivered to them through the post form these overseas websites”, which Ms Olivero also used her credit card to buy. The figure in the ticksheet, said to be owing to Ms Olivero, was said to be an accumulation of the moneys they had used to set up for the cannabis business and to buy the drugs overseas.^[3]   The applicant was sentenced to imprisonment for three years on the trafficking, and lesser concurrent terms on some of the other offences, suspended from the date of sentence in light of the time already served (about seven months).  He was also given probation in respect of another offence.

3. On 25 October 2016, the applicant was convicted in the Noosa Magistrates Court of possessing drugs (cannabis) and a pipe.  He was charged with Ms Olivero.  They were stopped by police when in a car.  The applicant was seen to throw something out of the car window.  A search of the car revealed a small amount of cannabis.  A search of the area outside found a pipe and another bag with four clip seal bags of cannabis inside it.  He was sentenced to imprisonment for 2 months, which was suspended.  There was no commercial element to this offending.
4. On 22 June 2017, the applicant was convicted in the Maroochydore Magistrates Court of further drug offences including producing and possessing cannabis.  The applicant was again charged with Ms Olivero.  They were living at the applicant’s father’s house at the time.   They had set up a “reasonably sophisticated cannabis producing set up” in bushland behind the house.  337 grams of cannabis was found.  No commerciality was alleged.^[4]  He was sentenced to three months’ imprisonment, previous suspended sentences which were breached by this offending were ordered to be served, and he was released on parole.

The relevant principles

19. [19]
    The relevant principles were recently restated in R v WBN [2020] QCA 203.   As Fraser and McMurdo JJA said, at [3]-[4]:

3. “[3]
   In Queensland, with one qualification,^[5] it is the common law which is applied to determine the admissibility of similar fact evidence. The common law of admissibility is that propounded in Hoch v The Queen,^[6] and confirmed in Pfennig v The Queen^[7] and Phillips v The Queen.^[8]

3. [4]
   The common law allows, in an exceptional case, evidence to be admitted although it is relevant only because it demonstrates a relevant propensity or tendency of the accused.^[9]  Evidence of the accused’s propensity may be admitted if it has a specific connexion with the commission of the offence charged, and there is no reasonable view of the propensity evidence which is consistent with the accused’s innocence.^[10]  However similar fact evidence may be admissible because it is relevant in another way.  It is necessary to understand how it is relevant, or in other words, the use to which it may be put, in order for a court to assess whether it has such a strong probative force, according to Hoch and Pfennig, that it should be admitted.”

20. [20]
    In this case, the use which the Crown proposes to make of the evidence of prior convictions is to prove that it was the applicant (together with Ms Olivero), and not someone else, who committed the offences he is now charged with.  The evidence of the prior convictions is relied upon as rendering it objectively improbable that either the deceased flatmate or Ms Olivero alone (rather than Ms Olivero together with the applicant) committed the acts in question.^[11] 
21. [21]
    As Fraser and McMurdo JJA also said, in R v WBN at [15]-[17]:

3. “[15]
   The common law test of admissibility has been described, in different ways, as a particularly demanding one:  see the descriptions in Phillips at [54].  And in the same case, the High Court said:

‘Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused’s character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided.’

3. [16]
   In the application of the Pfennig test, similar fact evidence must be assessed in the context of the prosecution case on the charge for which the evidence is sought to be tendered, and the test must be applied on certain assumptions.  It must be assumed that the similar fact evidence would be accepted as true, and that the prosecution case on the count in question, apart from the similar fact evidence, may be accepted by the jury.

3. [17]
   The test requires the similar fact evidence to be excluded if viewed in that context and with those assumptions, ‘there is a reasonable view of the similar fact evidence which is consistent with innocence’.  Put another way, ‘the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.’”^[12]

22. [22]
    As Mason CJ, Deane and Dawson JJ said in Pfennig, at 485:

“… propensity evidence is circumstantial evidence and … as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances.  More than that, the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it which is consistent with innocence.”

23. [23]
    An example of the application of the common law rule in the context of drug offences is Harriman v The Queen (1989) 167 CLR 590.   In that case, Harriman was convicted on five counts of being knowingly concerned in the importation of heroin.  The heroin had been posted by Martin from London in April 1987 in five parcels addressed to five separate addresses in Western Australia.  That was not in dispute; what was in dispute was whether Harriman was knowingly concerned in that importation.   The High Court held that the trial judge had not erred in admitting, as similar fact evidence, evidence that around the end of 1986 Harriman had on more than one occasion supplied heroin to another person; that at about the same time Harriman and Martin were together involved in the sale of heroin; and that Harriman was a heroin user.  The particular element of that evidence, which made it admissible, was Harriman and Martin acting in concert with one another.  That evidence was held to be admissible, on the ground that it was highly probative of the criminal character of Harriman’s association with Martin in April 1987.   As Brennan J said, at 595-596:

“A person who is shown to have participated to a substantial degree in that trade – I am not speaking of mere use or of an isolated sale – is likely to have incentives to continue his participation in the trade and, because of the nature of the trade, is more likely to have done so than one who has not been a substantial participant.  Evidence of substantial participation in the heroin trade can support an inference of continued participation although, of course, each case depends on its own facts.  In determining whether or not evidence of participation can support such an inference, regard must be had to the extent and duration of past participation, the proximity in time between the past participation and the offence charged and the whole of the circumstances of the case.  In this case, the extent of Harriman’s participation was such that, in the absence of anything to suggest that the participation by Harriman and Martin in the sale of heroin in Western Australia had been discontinued, the guilty inference might properly have been drawn.” [emphasis added]

24. [24]
    Another example, albeit in a context in which a statute^[13] governs admissibility rather than the common law, is BNM v The Queen [2020] SASCFC 10.   I mention this case briefly, as it was addressed by the parties at the hearing of the application; although I am conscious that legislative equivalents of the common law rule have been described as less demanding.^[14]   In that case, a charge was brought against the appellant arising out of a search of her unit at Oakden on 13 February 2017.  During the search, the police found three plastic tubs hidden in a compartment above the kitchen pantry, containing 13.5 grams of pure methylamphetamine in 40 grams of substance.  She was charged with trafficking which, under the Controlled Substances Act 1984 (SA) includes “have possession of the drug intending to sell it”.  The issue at trial was whether or not she was in possession of the drugs found at her home.   Evidence was led at the trial of three previous searches:  

    1. the first, on 28 November 2015 and the second, on 12 January 2016, were of her home, but at another location, Bowden; on each occasion, methylamphetamine was found, and the appellant pleaded guilty to two counts of trafficking (again, possession with intent to sell), one in relation to each search;
    2. the third, on 30 December 2016, was of her unit at Oakden, on which occasion another person, FR, was present; cocaine was found in FR’s wallet as well as some methylamphetamine in a plastic tub under the mattress in the main bedroom.
25. [25]
    The appellant’s case at trial was that the evidence did not establish that she was in possession of the methylamphetamine found hidden above the pantry in her house, and that another person (FR) could have been responsible for concealing the drugs in that location.  On an appeal against the conviction, on the ground that the trial judge had improperly permitted the evidence of the prior searches to be led, it was held the evidence of the earlier searches and convictions was relevant to the jury’s consideration of the issues as “it was probative of an interest and involvement in methylamphetamine trading, which, if continuing, would make it more likely that the appellant knew of and possessed the methylamphetamine located during the search on 13 February 2017” (at [53]). 
26. [26]
    In relation to the first two searches, it was regarded as significant that they were not mere allegations, they were instances of admitted involvement in methylamphetamine trading; although involving different locations, they both involved conduct at the appellant’s then home; and both involved the same drug, methylamphetamine.  The “remoteness in time” (about 14 months) was considered relevant, but not such as to diminish the probative value of the evidence.  As to the third search, although the facts on this occasion were disputed, the close proximity in time was considered to make this, if accepted by the jury, highly probative of a continuing interest and involvement in the methylamphetamine trade (at [68]-[70]).

Basis on which the Crown submits the evidence is admissible

27. [27]
    In the present case, the Crown submits the evidence of previous convictions is admissible because “it reveals a pattern of activity such that, if accepted, bears no reasonable explanation other than the inculpation of the applicant in the trafficking and other drug offences” the subject of the present indictment.   
28. [28]
    In support of the submission as to a “pattern of activity”, the Crown emphasised the following things, in relation to each of the previous convictions:

    1. for the 26 November 2013 conviction, that:
       3. (i)
          it involved a dangerous drug (albeit cannabis);
       3. (ii)
          the conduct included importing cannabis seeds from overseas through the mail; and
       3. (iii)
          there was evidence of what counsel for the respondent called “trophy photographs”;
    2. for the 19 March 2015 conviction that:
       3. (i)
          it involved dangerous drugs – in a large quantity (again, cannabis);
       3. (ii)
          it involved the applicant and Ms Olivero acting together;
       3. (iii)
          there was evidence of “trophy photographs”;
       3. (iv)
          a “drug phone” was used;
       3. (v)
          hallucinogenic drugs were also possessed; and
       3. (vi)
          there was evidence of importation of the hallucinogenic drugs from overseas through the mail.
    3. for the 25 October 2016 conviction, the Crown could not put this any higher than that it showed a continuing involvement in drugs, and being with Ms Olivero; and
    4. for the 22 June 2017 conviction, that:
       3. (i)
          it involved drugs (again, cannabis);
       3. (ii)
          it involved the applicant and Ms Olivero acting together; and
       3. (iii)
          they were staying at the applicant’s father’s house [which was said to be similar to the present allegations, given that one of the intercepted packages was addressed to Ms Olivero’s parents’ address].
29. [29]
    The high point of the Crown’s argument, in terms of admissibility of this evidence of prior convictions, is the involvement of the applicant and Ms Olivero together, and the evidence of importation of drugs through the mail.   In my view the fact that the offending involved drugs is unremarkable – in the sense that, if it did not, the argument would not even arise.  What is something to remark upon, though, is that for the most part, the prior convictions involve a different drug – cannabis.  Likewise, I do not regard the presence of “trophy photographs” as of any real significance, being a not uncommon incident of quite a lot of drug offending.   The use of a drug phone is bordering on irrelevant, given how common that is.  The fact of staying at the applicant’s father’s house is not of any significance, given that is where the applicant and Ms Olivero lived at the time, as opposed to revealing a pattern of using a parent’s address for packages to be mailed to.
30. [30]
    In relation to the first conviction:  only one of those things is present (importation through the mail); the conviction was about five years before; and it was quite different offending – involving the production, possession and supply of a different drug, cannabis, by the 17 year old applicant.   The evidence of this prior conviction does not have the requisite strong degree of probative force – a “really material bearing on the issues to be decided” – to render it admissible.  There is a reasonable view of it which is consistent with the applicant’s innocence – merely because he has been involved in the production and sale of cannabis in the past does not support, as the only reasonable inference, the conclusion that he must have committed the offences with which he is now charged.  There is not the requisite proximity in time, nor is it evidence of a substantial, ongoing participation in the business of selling MDMA or either of the other drugs found.
31. [31]
    In relation to the second conviction:  the two elements, of association between the applicant and Ms Olivero, and obtaining hallucinogenic drugs through the post from overseas, are present; but the conduct was over three and a half years earlier.  In BNM, 14 months was regarded as “remoteness in time”, although not so remote as to overcome the significant probative value of the evidence given the other similarities (found in the appellant’s home; the same drug).   But three and a half years is much longer; and once again, the evidence giving rise to this second conviction does not support an inference, as the only reasonable inference to be drawn, of a continued involvement in the trade of drugs of the kind found in the recent police operation.  

32. [32]
    The argument in relation to the third conviction is very weak, and acknowledged to be so by counsel for the respondent.  The fact that it involved no commercial activity further supports exclusion.
33. [33]
    Finally, the fourth conviction:  it has the element of the applicant and Ms Olivero acting together, but is otherwise very different offending – the production of cannabis for personal use – such that it too does not have the requisite strong degree of probative force to render it admissible.
34. [34]
    Viewed in the light of the prosecution case, there is a reasonable view of the evidence giving rise to the past convictions, which is consistent with the applicant’s innocence of the present charges – namely, that he was previously, quite some years ago, involved in the production and sale of cannabis, that he has continued to use cannabis, and has continued to produce cannabis for his own use; but that he is not involved in the business of selling MDMA, Flualprazolam or 2C-B, whether alone or with Ms Olivero.   The evidence of prior convictions is highly prejudicial.  A jury would quickly reason that, against that background, he must be guilty of the current offences.  But the evidence of prior convictions – given the lack of temporal connection, and the different nature of the offending – in terms of the drug involved, and the nature of the activity – does not compel, as the only rational or reasonable inference to be drawn, a conclusion that having regard to that evidence he must have been involved in the manner now alleged, with Ms Olivero.
35. [35]
    I am not satisfied the high threshold of admissibility is met.  Accordingly, the application is allowed, and evidence of the prior convictions is excluded.