The Queen v Cameron[2021] QSCPR 7

1. [1]
   HER HONOUR: This is an application for a ruling that evidence of previous convictions or occasions where the applicant is said to have been in possession of dangerous drugs or paraphernalia is excluded from evidence at the trial of the applicant. 
2. [2]
   If the application is unsuccessful, it is proposed that evidence be admitted by way of formal admission as follows:

1. The defendant and a bag in his possession were searched by police on 7 September 2019 in Lutwyche.  Inside the waistband of his pants was a set of scales.  In the bag was:

1. (a)
   A clip seal bag which contained a white crystal substance that contained methylamphetamine and weighed 0.65 grams (including the bag).
2. (b)
   A plastic container that contained a white crystal substance that contained methylamphetamine and weighed 1.98 grams (including the container).
3. (c)
   Two glass pipes used for smoking methylamphetamine that had been used.
4. (d)
   A number of small clip seal bags.

2. The defendant was searched by police in Fortitude Valley on 27 November 2019.  He had a clip seal bag in his sock which contained approximately 0.5 grams of a white crystal substance that contained methylamphetamine.^[1]

3. [3]
   At the hearing of the application on 23 March 2021, I requested that the Crown identify the material facts to be relied upon by the Crown and the inferences that were sought.  This was reduced to writing and provided to me for the purpose of the consideration of the application.^[2]
4. [4]
   In relation to the facts relating to the two occasions the applicant possessed methylamphetamine on 7 September 2019 and 27 November 2019, the inferences sought by the Crown are stated as follows:

“The defendant used methylamphetamine and possessed methylamphetamine for use at

times during the period September – November 2019. 

The iMessages relating to ‘bag’ and ‘HB’ may have related to methylamphetamine.  Given that series of similar events, in the context of the whole Crown case, it is highly improbable that the defendant was in the car with Chau on 11 November 2019 for an innocent purpose.”^[3]

Applicant’s position

5. [5]
   The applicant seeks a ruling under s 590AA of the Criminal Code in relation to the admission of this evidence:  the evidence is objected to on the basis it is “propensity” or “similar fact” evidence.  The applicant contends that the evidence is inadmissible as it does not meet the test in Pfennig v The Queen.^[4]  The applicant also relies on the exercise of the common law discretion preserved by s 130 of the Evidence Act 1977 (Qld) and contends that the evidence is inadmissible on the basis that any probative value of the evidence is limited and it is highly prejudicial.

Crown’s position

6. [6]
   The Crown contends that the evidence is admissible on two bases:

   1. (a)
      As circumstantial evidence relevant to the interpretation of certain text messages, and
   2. (b)
      As “similar fact evidence” to disprove innocent association.

Nature of Crown case

7. [7]
   The applicant is charged with one count on indictment 1379 of 2020 that on 11 November 2019 at Herston in the State of Queensland he unlawfully had possession of the dangerous drug methylamphetamine, with the quantity of the dangerous drug exceeding 2.0 grams. 
8. [8]
   The Crown’s case is that on 11 November 2019 at around 10.20 pm police intercepted a white Holden Commodore on Bowen Bridge Road, Herston.  Mr Andrew Chau was the driver of the vehicle and had also hired the vehicle.  The applicant was in the front passenger seat of the vehicle.  Mr Chau was wanted by police in relation to other matters and he was arrested and a search was conducted of the vehicle. 
9. [9]
   During the search, police located a clip seal bag between the door and the front passenger seat which contained 4.988 grams of white crystalline substance.  The substance was analysed and found to contain 3.86 grams of pure methylamphetamine with a (77.4 per cent purity).  The charge in respect of the applicant is in relation to the drugs contained in this clip seal bag.
10. [10]
    During the search of the vehicle police also located other items including a black coloured soft case in the driver’s side door which contained the following items:

    1. (a)
       A blue container containing 8.562 grams of white crystalline substance with 6.558 grams of pure methylamphetamine (76.6 per cent purity).
    2. (b)
       Two containers with a clear liquid totalling 52.76 grams of Gamma-Butyrolactone (GBL), which is a thing that has a pharmacological effect and is the same as the schedule 2 dangerous drug Gamma-Hydroxybutyrate (GHB).
    3. (c)
       A quantity of clip seal bags, a syringe and a filter sponge.
11. [11]
    A search of the vehicle also located a taser device beneath the driver’s seat of the vehicle and a taser cartridge in the centre console. 
12. [12]
    Police also located a glass pipe between the driver’s seat and centre console. 
13. [13]
    In the driver’s footwell the police also located a black coloured leather satchel bag in which the police located:

    1. (a)
       $12,000 in Australian currency;
    2. (b)
       a black handle flick knife; and
    3. (c)
       a set of digital scales.
14. [14]
    Mr Chau indicated that this bag was his.
15. [15]
    Within the boot of the car was another set of digital scales. 
16. [16]
    An access card was also located during the search of the vehicle and police undertook a further search at an address associated with Mr Chau in Fortitude Valley.  The search was undertaken at 1.58 am on 12 November 2019 where persons were located as well as drugs and other paraphernalia.
17. [17]
    The Crown has indicated that at trial, it will lead evidence from the relevant police officers in relation to the search of the vehicle and the items located in the vehicle.  It has also indicated that the Crown will tender various photographs taken of the location of the various items within the vehicle. 
18. [18]
    It has also been identified that the analysis of the various substances located in the vehicle will be the subject of formal admissions.^[5]
19. [19]
    The Crown has also indicated that it will also be relying on a number of text messages with have been identified on the mobile telephone of Mr Chau, the driver of the vehicle.  These messages are relevantly with a contact name “Dean Cameron Pimp” which has the same stored mobile phone number as the applicant.
20. [20]
    It is proposed that these text messages be admitted as part of formal admissions.^[6] 
21. [21]
    These text messages occur over approximately a two week period commencing on 14 October 2019 but do not cover the date of the current offending, 11 November 2019.  The Crown’s case relies upon the contents of the text messages between Mr Chau and the applicant to establish by necessary inference that their relationship involves drug use and supply.  This evidence is to be supplemented by evidence from a police officer with experience in drug operations as to commonly used code in communications regarding methylamphetamine and related drug paraphernalia together with a street value of methylamphetamine.
22. [22]
    The Crown also seeks, subject to this application, to rely on evidence that on two previous occasions the applicant had possession of methylamphetamine: namely, approximately eight weeks before and two weeks after the charged date.  It is sought to rely on this evidence to show that the applicant was a person who used and possessed methylamphetamine in that period.
23. [23]
    The text messages identified by the Crown include references to “flutes”, “check signal”, “a bag”, “reload”, “HB”, “Charles” and “Chico” which the Crown contends are all consistent with references to drug use, including methylamphetamine and other drugs. 
24. [24]
    The Crown relies on inferences to be drawn from these text messages (supplemented by the evidence of the codes referred to above) to establish that the defendant and Mr Chau’s relationship included the discussion of the use and supply of methylamphetamine and pipes for smoking methylamphetamine.  Ultimately, the inference sought is that the purpose of the applicant and Mr Chau being in the car on 11 November 2019 was drug related.

Admissibility of similar fact evidence

25. [25]
    Evidence of discreditable conduct relied upon by the Crown is both the evidence in relation to the applicant possessing methylamphetamine on 7 September 2019 and 27 November 2019 as well as the text messages.  The text messages are not objected to by the applicant and as previously discussed it is proposed that they be admitted into evidence by way of formal admissions. 
26. [26]
    The evidence in relation to the applicant’s possession of methylamphetamine on 7 September 2019 and 27 November 2019 is objected to.
27. [27]
    In order for similar fact or tendency evidence to be admissible (that is, as evidence of discreditable conduct in proof of a charged act), the evidence must not only be relevant to the proof of the charged act but also have a high degree of probity justifying admission of the evidence.
28. [28]
    The principle has been stated in a line of cases including Hoch v R^[7] which was confirmed in Pfennig v R^[8] and more recently, in Phillips v The Queen.  Evidence of an accused’s commission of discreditable acts other than those the subject of the charge may be admitted as tendency evidence only where it supports the inference that the accused is guilty of the offence charged and permits no other innocent explanation.
29. [29]
    The Crown’s case, in respect of the applicant is a circumstantial case.  The similar fact evidence sought to be relied upon is circumstantial evidence. 
30. [30]
    Circumstantial evidence may be relevant in a number of different ways.  This was recognised by Justice Davis in the decision of The Queen v Sinfield (No 2)^[9] where his Honour stated as follows:

“Similar fact evidence is circumstantial evidence.  In proof of the count or counts on the indictment the Crown leads evidence not directly in proof of the doing of the charged acts but leads evidence of the commission of other offences (or discreditable conduct), proof of which makes it more likely that the accused has committed the charged offence.^[10]  The circumstantial evidence may be relevant to prove particular elements such as intention or may be led to identify the accused as the perpetrator of the charged act.  It may be that the evidence is relevant to proof that the charged act actually happened.”

31. [31]
    The case of Makin v Attorney-General for New South Wales^[11] is perhaps one of the best known examples.  In that case the presence, at houses occupied or previously occupied by the accused of the bodies of several babies, was relevant to prove both the commission of the offence of murder and to identify the accused as the killers. 
32. [32]
    In that case their Lordships identified:

“…the principles which must govern the decision of the case are clear, though the application of them is by no means free from difficulty.  It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.  On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.  The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.”^[12]

33. [33]
    In the more recent High Court decision in Phillips v The Queen^[13] the relevant starting point for consideration of this issue was identified as follows:

“To what issue was the similar fact evidence relevant?  It is essential at the outset to identify the issues at the trial on which the similar fact evidence is tendered,  for this is central to the identification of relevance, and to the assessment of probative force on which the admissibility of similar fact evidence depends.”

34. [34]
    It is then necessary to consider the test as stated in Pfennig v The Queen, that is, the evidence is inadmissible unless, viewed in the context of the prosecution case, there is no reasonable view of the similar fact evidence consistent with the innocence of the accused.
35. [35]
    In respect of the task to be undertaken in deciding inadmissibility of similar fact evidence, the court in Phillips stated as follows:

“What is said in Pfennig v The Queen about the task of a judge deciding the admissibility of similar fact evidence, and for that purpose comparing the probative effect of the evidence with its prejudicial effect, must be understood in the light of two further considerations.  First, due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case.  Secondly, it must be recognised that, as a test of admissibility of evidence, the test is to be applied by the judge on certain assumptions.  Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury.  Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged.  But it does require the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence.”

36. [36]
    The Crown concedes on the application that the hypothesis of Mr Chau being in possession of the clip seal bag and the applicant being innocently in the car may be a reasonable hypothesis, particularly in the circumstances where there will be evidence of Mr Chau being a dealer of drugs, including methylamphetamine to the defendant and others.
37. [37]
    However, the Crown seeks to rely on inferences to be drawn from other  circumstantial evidence to “change the probabilities” that is, to form the basis to exclude that reasonable hypothesis.
38. [38]
    The Crown contends that the text messages themselves are not enough to found an actual supply but they rely on them as the basis for an inference as to the relationship between Mr Chau and the applicant being a relationship including the use and supply of drugs including methylamphetamine.  The Crown then seeks to rely upon this evidence to give weight to the inference that the applicant was in possession of drugs he just purchased from Mr Chau taking into account the type of drugs, the clip seal bag and the purple seal on the clip seal bag.  It is in these circumstances that the Crown alleges that it would ultimately be an unreasonable inference that the drugs were in the possession of Mr Chau.
39. [39]
    In relation to the two possessions by the applicant, the Crown points to that evidence to support the inference that the applicant was a user.  This is based on both the possessions being direct possessions and the first occasion also involving a pipe, all of which lead, on the Crown’s case, to an inference that the applicant was a user between the two dates.  The Crown also points to the small amount of drugs involved in both possessions as supporting an inference that the applicant is a user rather than a supplier.
40. [40]
    The Crown relies upon the decision of Justice Douglas in R v Stewart^[14] in support of its position.  That case concerned searches conducted at three separate properties at approximately six monthly intervals. 
41. [41]
    The charges there related to trafficking and possession on the first group of charges, possession and production on the second group of charges and production and possession on the third group of charges.  The issue being whether the charges should be severed.  His Honour concluded:

“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).”

42. [42]
    In relation to disproving an innocent association, the Crown in this case seeks to rely on the following similarities between the charged offence and the two possessions:

    1. (a)
       On all three occasions (7 September, 11 November and 27 November) methylamphetamine was the relevant dangerous drug.
    2. (b)
       It was methylamphetamine in crystal form as opposed to powder form.
    3. (c)
       It was methylamphetamine packaged in a clip seal bag, however, on 7 September, it was accepted that it was a clip seal bag and a container.
    4. (d)
       They were all small quantities consistent with personal use.
43. [43]
    The Crown seeks to rely on the reasoning in the decision of Harriman v The Queen^[15] in respect of the analysis of the importation evidence but seeks to distinguish the Court’s comments in respect of the inadmissibility in relation to drug use.  In this regard, the Crown seeks to distinguish that part of Harriman v The Queen and also the case of R v Angel.^[16]  In both Angel and that part of Harriman, the issue being considered was commercial amounts and in those circumstances, the mere use of the relevant drug may not have had strong probative value in the circumstances.  The Crown here seeks to point to the fact that there is strong probative force because of the small personal use quantities involved, as opposed to commercial amounts.
44. [44]
    There is no evidence that Mr Chau was involved in the applicant’s possessions on 7 September 2019 and 27 November 2019. 
45. [45]
    The Crown was asked to consider how the jury should be directed in respect of the potential use of the evidence of the two possessions by the applicant of methylamphetamine on 7 September 2019 and 27 November 2019^[17] and draft directions were provided.  The draft directions were as follows:

“You have heard evidence that the defendant possessed methylamphetamine on other occasions. That evidence is contained in paragraphs X and Y of the admissions.

That evidence can only be used by you in two particular ways.

First, you can use that evidence to assist in the interpretation of the iMessages between the defendant and Chau that are attached to the admissions. The prosecution submits that you could infer from the fact that the defendant possessed methylamphetamine on those occasions that he was a user of methylamphetamine in the period September to November 2019. The prosecution says on that basis that the iMessages relating to “bag” and “HB” may have been related to methylamphetamine. The prosecution case is that this evidence is part of the overall inference that the defendant and Chau’s relationship was primarily related to drugs and involved methylamphetamine. The defence says [those occasions are so remote in time and there is no proof they involved Chau so they are irrelevant]. Whether the other occasions he had possession of methylamphetamine assist in interpreting the messages and the defendant’s relationship with Chau is a matter for you Second, you can use that evidence to assess the probability of the innocent hypothesis that arises on the evidence that the defendant was innocently in the car and had nothing to do with the methylamphetamine. The prosecution submits you would find that hypothesis highly improbable and not reasonable because he was found in possession of methylamphetamine on those other occasions. The prosecution says the chances of him innocently sitting in such close proximity to an amount of methylamphetamine in the same 11 week period that he was using and possessing methylamphetamine is very low. The defence says [those occasions are so remote in time and didn’t involve Chau so they do not detract from that hypothesis]. It is a matter for you whether the hypothesis that he had no association with the methylamphetamine is a reasonable one or not, and as I explained earlier that is the key question for you in the case.

I must tell you how you cannot use the evidence. You cannot use the evidence to reason in this way – ‘ … that he is the sort of person who could commit these sort of offences, or is of bad character, and therefore we will convict him of all the charges’.

You cannot say to yourselves that because you are satisfied beyond reasonable doubt that the defendant possessed methylamphetamine on other occasions, he must therefore have possessed the methylamphetamine on this occasion, and so we will convict him.”

Consideration

46. [46]
    The probative value of the evidence sought to be led in relation to the two other possessions can only be evaluated by consideration of the Crown case. 
47. [47]
    The Crown has identified the material facts and inferences sought in a document provided to the court as MFI “D”.  I will not set these out in full but will however summarise these for the purposes of these considerations.
48. [48]
    Firstly, the Crown points to the fact that the applicant was sitting in close proximity to the drugs when intercepted by police.  They also point to the clip seal bag being in a position consistent with being dropped down the side of the passenger seat.  From this, the Crown seek the inference that the applicant was the only person in the position to have had possession of the relevant clip seal bag immediately before the police interception.
49. [49]
    Secondly, the Crown points to the fact that no-one was in the car except the applicant and Mr Chau, that the relevant methylamphetamine weighed approximately five grams, gross with a value of approximately $1,050 to $1,200.  They also point to the fact that the drugs were located in a position between the seat and the door which involved some risk of someone seeing them, taking them or them being affected in some way if the door was opened or otherwise being detected by police.  The inference sought is that anyone who owned the methylamphetamine would not leave it in the position it was found.
50. [50]
    Thirdly, the Crown relies on the items found on the driver’s side of the car including a large quantity of methylamphetamine in a plastic container, clip seal bags, cash, a knife, taser and spoon, together with the hotel key card in Mr Chau’s possession which led to discovery of other drug items, together with the text messages between Mr Chau and the applicant as a basis for the inference that Mr Chau was a dealer of drugs including methylamphetamine to the applicant and others.
51. [51]
    Fourthly, the Crown points to consistency of appearance of the methylamphetamine in the container in the black pouch and the methylamphetamine in a clip seal bag, together with the consistency of appearance of clip seal bags in a black pouch and the bag of methylamphetamine the subject of this charge was in.  The Crown also relies upon Mr Chau having a container of methylamphetamine, empty clip seal bags and a spoon.  This is relied upon to found an inference that the methylamphetamine found was consistent with how Mr Chau would supply it on that particular day rather than store it.
52. [52]
    Fifthly, the Crown rely upon Mr Chau not being in a position to immediately exercise control of the drugs in the location where it was next to the front passenger seat.  Further, that Mr Chau’s accoutrements of trafficking were in a neat and tidy state, together with the approximate five gram gross weight of the methylamphetamine and the value of $1,050 to $1,200 and the associated risks with the location of the clip seal bag of methylamphetamine.  Together this is relied upon to found an inference that Mr Chau would not leave that amount of methylamphetamine down the side of the passenger seat.
53. [53]
    Sixthly, the Crown relies on the text messages found on Mr Chau’s phone with the applicant together with the evidence of the police officer in relation to the use of code in messages.  This is relied upon to found an inference that the relationship between the applicant and Mr Chau included the discussion of the use and supply of methylamphetamine and pipes for smoking methylamphetamine.  Further, there are no text messages that suggest any significant non-drug related relationship, as propounded by the Crown in its case.  Further, the inference sought is that the purpose of the applicant and Mr Chau being in the car on 11 November 2019 was drug related.
54. [54]
    As previously identified, the inference sought from the facts relating to the applicant possessing methylamphetamine on 7 September 2019 and 27 November 2019 is that the applicant used and possessed methylamphetamine for use in the period September to November 2019. 
55. [55]
    The possessions themselves are in relation to a single point in time and there is no other evidence of the applicant’s drug use or addiction.  Accordingly, the probative force of the evidence in respect of the other possessions may not go as far as supporting the inference sought.
56. [56]
    Further, the Crown also seeks to use the evidence to support an inference that the text messages related to “bag” and “HB” may have related to methylamphetamine.  Again, the probative force of the evidence of the possessions may not go as far as supporting this inference, particularly where there is no link between Mr Chau and these possessions.
57. [57]
    There is also an overarching inference sought in relation to the evidence of the two possessions, namely:

“Given that series of similar events, in the context of the whole Crown case, it is highly improbable that the defendant was in the car with Mr Chau on 11 November 2019 for an innocent purpose.” 

58. [58]
    As already observed, there is no evidence of any link between Mr Chau and the possessions on 7 September 2019 and 27 November 2019.  If there was such evidence then the considerations of the admissibility of this evidence may be different. 
59. [59]
    However, in the current circumstances, it is difficult to see how this evidence is probative to the extent that the probative force of the evidence outweighs its prejudicial effect. 
60. [60]
    This is particularly so when considering the test in Pfennig v The Queen  that such evidence is inadmissible unless viewed in the context of the prosecution case, there is no reasonable view of the similar fact evidence consistent with the innocence of the accused.
61. [61]
    While the Crown contends that the evidence in relation to the two possessions goes to “probability” rather than propensity evidence, it is difficult to see how this is so.  The reality is that the Crown is seeking to rely on the evidence to establish that the applicant possessed methylamphetamine for use on 7 September 2019 and also on 27 November 2019.  In the context of the Crown case, it can be for no other use to rely on this evidence other than to infer that he possessed methylamphetamine previously and therefore that is why he was in the car on this occasion.
62. [62]
    As is apparent from the overview of the material facts and inferences sought by the Crown, the additional evidence in relation to the possessions on 7 September 2019 and 27 November 2019 is not highly probative. 
63. [63]
    The two occasions of possession of methylamphetamine by the applicant are temporally removed from the current offending and also the text messages.  The possessions are also not linked in any way to Mr Chau. To the extent that it is sought to found an inference going to the relationship of the applicant with Mr Chau, the evidence proposed has little, if any, probative value.  Further, to the extent that the Crown also seeks to rely on the evidence to assist in the interpretation or understanding of the text messages, the evidence also has little, if any, probative value.  Again, there is no link between the applicant and Mr Chau in respect of the possessions.  To contend that evidence of the two possessions on different dates to the text messages and which did not involve both parties somehow informs the meaning of the texts, does not have a sound basis.
64. [64]
    Further, the factual circumstances sought to be relied upon in respect of the previous possessions are of such a general nature that it is difficult to see how they could be probative of anything other than that the methylamphetamine was in the applicant’s possession following being supplied by an unknown supplier.  The crystal form, the packaging in a clip seal bag and the small quantities consistent with personal use are not in themselves anything of distinction.
65. [65]
    While there is no need to establish striking similarity, there is nothing of particular note in relation to these circumstances and there are no unusual features which would provide evidence of a greater link between the uncharged acts sought to be put into evidence and the charged act.
66. [66]
    In order to meet the Pfennig test the evidence relied upon by the Crown must admit of no other reasonable hypotheses other than guilt.  The evidence of the two occasions of possession does not exclude other innocent explanations as to the alleged offending on 11 November 2019.
67. [67]
    The Crown seeks to infer from the two occasions of possession that the applicant was a user throughout the period from 7 September 2019 to 27 November 2019.  Further, the Crown seeks to use the evidence to assess the probability of the likely innocent hypothesis that arises on the evidence that the applicant was innocently in the car and had nothing to do with the methylamphetamine on 11 November 2019. 
68. [68]
    Ultimately, the Crown contends that the evidence renders the innocent hypothesis highly improbable and not reasonable because the applicant was found in possession of methylamphetamine. 
69. [69]
    The use of the evidence of the two possessions in this way is to use it really as propensity evidence.  The Crown has proposed draft directions as to its use including a warning against propensity reasoning.  While this has been done, it does not change the character of the way the evidence is in reality being sought to be used.  The draft directions really highlight the precise problem with the use of this evidence.
70. [70]
    In the overall circumstances of all of the Crown evidence, the use to be made of the evidence of the two occasions of possession of methylamphetamine by the applicant is really that as he had possessed methylamphetamine on other occasions, he must have possessed methylamphetamine on this occasion.  Describing it as “evidence of probability” does not change that character. 
71. [71]
    If there was evidence of a link to Mr Chau and the relationship between them, it may have been able to be characterised differently (and more akin with the situation discussed in Harriman v R, involving the importation).  However, the nature of the evidence of the two possessions of methylamphetamine by the applicant sought to be relied upon here do not meet the Pfennig test. 
72. [72]
    In these circumstances, I am not satisfied that the test for admissibility in Pfennig has been made out.  In the circumstances, the applicant’s application is allowed.  I rule that the proposed evidence of the applicant possessing methylamphetamine on 7 September 2019 and also on 27 November 2019 is excluded from evidence at the trial of the applicant.