District Court New South Wales Medium Neutral Citation: R v Shah (No 1) [2022] NSWDC 707 Hearing dates: 29 – 31 March 1, 4 – 5 April 2022 Date of orders: 5 April 2022 Decision date: 05 April 2022 Jurisdiction: Criminal Before: Sutherland SC DCJ Decision: At [46] Evidence relevant and admissible. Some messages and communications subject to objection voluntarily excised by the Crown. Direction to be given as to non-propensity reasoning and appropriate relevance. Catchwords: CRIME — Drug offences — Possess prohibited drug — Cocaine EVIDENCE — Criminal Proceedings — Admissibility — Tendency and Coincidence Evidence — Involvement in Drug trafficking — Propensity to Commit Crime Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Falzon v The Queen [2017] VSCA 74 Harriman v The Queen [1989] HCA 50; 167 CLR 590 and 88 ALR 161 Malubel Pty Ltd v Elder (1998) 88 FCR 242; (1998) 103 A Crim R 568 Parker v Churchill (1985) 9 FCR 316 Peters v The Queen [1998] HCA 7; 192 CLR 493 R v AN [2000] NSWCCA 372; 117 A Crim R 176 R v Ball [1911] AC 47 R v Dennis Bauer (a pseudonym) [2018] HCA 40 R v Gale; R v Duckworth [2012] NSWCCA 174 R v Garner (1963) 81 WN (Pt1) (NSW) 120) R v Hissey (1973) 6 SASR 280 R v Matonwal & Amood [2016] NSWCCA 174 Sultana v The Queen (1994) 74 A Crim R 27 The Queen v Falzon [2018] HCA 29 Thompson and Wran v The Queen (1968) Wilson v The Queen [1970] HCA 17; 123 CLR 334 Category: Procedural rulings Parties: Crown Abdul Malik Shah (Offender) Representation: Counsel: B Stevens (Crown) S Orman-Hales (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 2019/00162030 Publication restriction: Nil JUDGMENT 1. Abdul Malik Shah has been arraigned on one count of attempting to possess a border control drug; namely, cocaine. In advance of empanelling a jury, the Court has been asked to rule on a number of pre‑trial applications to exclude evidence otherwise proposed to be relied upon by the Crown. The various applications have proceeded over several days. I do not propose to go into minute detail regarding all aspects of the Crown case, but an overview of the substance of the allegation is a necessary prerequisite. A box with cocaine secreted in packages within the four walls of the cardboard box was detected at the International Mail Centre in Sydney on 13 May 2019. The box contained colourful pieces of material which were similar to shawls or wraps. The cocaine secreted within the actual cardboard packaging, comprising the walls of the box, was in due course ascertained to be slightly more than 400 grams gross with an average purity of 83%. This yielded approximately 332 grams of pure cocaine. 2. The packages of cocaine were removed and the box reconstituted for delivery. It had been consigned to an addressee, Abdul Sheh, at an address 4/1089‑1101 Canterbury Road, Wiley Park, NSW, 2195. A phone number for the consignee was also included in the address +61 452 198 774. In conformity with normal Australia Post procedure for delivery of an international mail item containing a parcel tracking number, a parcel collection notice was placed by a New South Wales police officer in the letterbox of the consignee's address, 4/1089‑1101 Canterbury Road, Wiley Park. In due course the evidence revealed that the letterbox of Unit 4 had its lock permanently in such a position as to leave that particular letterbox in a permanently slightly ajar position. Evidence proposed to be adduced from the resident of Unit 4, is that the letterbox had been in such an open circumstance and unable to be locked for some considerable period of years meaning that the contents of the letterbox would be readily accessible to anyone who simply lifted the metal flap, which otherwise would have required a key to open. 3. Of significance, there was nothing on the face of the parcel collection notice indicating the address on the parcel itself, that is 4/1089‑1101 Canterbury Road. The parcel collection notice was placed in the letterbox for Unit 4 at midday on Thursday, 16 May 2019. The parcel collection notice indicated the name of the addressee, namely Abdul Sheh, and that the item could be collected from Roselands Post Shop in the Centro Roselands Shopping Centre. The accused attended the Roselands Post Shop early the following morning, Friday, 17 May 2019. 4. For present purposes, it suffices to note that the post office staff would appear to have been alerted to the possible attendance of someone to collect the particular package, as New South Wales police had been in attendance with the package the previous day. The accused produced photo identification together with the parcel collection notice which had been placed by the police into the letterbox of Unit 4. The accused himself had a different spelling of the surname, namely Shah, and he resided at Unit 6 in the same apartment block, not at Unit 4. Staff at the post office took a photograph of the collection notice which he produced and also his identification card. They advised him that the parcel could not be located. The accused left saying that he would check at the Lakemba Post Office and declined to provide a contact phone number. After the accused left the Roselands Post Shop, the manager rang Lakemba Post Office to notify them of his impending arrival, and also tried to contact the Campsie Police. She could not get an answer from either location. 5. At about 9.20am the Australia Post manager did contact the New South Wales Police and sent the photograph of the parcel collection notice and the identification photo card produced by the accused to the police. The accused returned to the Roselands Australia Post branch a short while later and a conversation ensued in which he asked the manager to check for a package for Unit 4. According to her anticipated evidence, when she queried the address on his identification card was for Unit 6, the accused said, "I used to live at number 6 but I live at number 4." After having the accused write his address on the card as 4/1089 Canterbury Road, Wiley Park, the manager of the Post Office asked for his phone number so that she could call him after checking with the contractor. The accused again said that he would not provide a number and that he was going again to check at Lakemba. 6. On 23 May 2019, a search warrant was applied for and granted by Burwood Local Court. Police attended the accused's premises at Unit 6, 1089 Canterbury Road, Wiley Park, where the search warrant was executed and the offender spoken to. Following the completion of the search warrant, and after a recorded conversation between the accused and Senior Constable Heath Woods, the accused was arrested. He subsequently participated in a lengthy record of interview with the assistance of a Swahili interpreter, which extended for approximately two hours. A mobile phone being utilised by the accused was examined on the day by police and various text messages recorded in the phone, by means of the WhatsApp application, were photographed by police and questions regarding them were pursued in the recorded interview. Similarly, various contacts in the phone's directory were also the subject of questioning by police. 7. The phone was, in due course, subjected to a Cellebrite download and the metadata relating to photographs and various communications were subsequently obtained. Also located during the search of the accused's residence were items of clothing consistent with the CCTV footage of his attendance at the Roselands Post Shop the previous week. In addition, a small plastic bag containing many small resealable bags, described as quick lock or zip resealable bags, were located on the floor underneath a double bed in the bedroom. A black Alcatel mobile telephone having the same phone number as the number on the addressee or consignee details on the box containing the cocaine was also located during the search. 8. Prior to obtaining a search warrant for the accused's premises, the case officer for the New South Wales Police, who had assumed responsibility for the investigation from the Australian Federal Police, became aware of an additional package which had been located at the International Mail Sorting Centre on Friday, 17 May 2019. That package was addressed identically ‑ namely, to Abdul Sheh, 4/1089 to 1101 Canterbury Road, Wiley Park NSW 2195, Sydney, Australia. It similarly contained cocaine secreted within the cardboard walls of the box and contained very similar items of cloth or fabric to the first box that had been attempted to be collected. In due course police ascertained that the accused had telephoned the Australia Post Parcel Tracking Centre on 3 May 2019, inquiring about the whereabouts of this second ascertained box, which will be referred to as the uncharged consignment. 9. The call to Australia Post was recorded. The accused introduced himself as Abdul Sheh and said that he was checking up on "my parcel" and provided the tracking number. He said that the item had not been delivered. At that time, the uncharged consignment was still with Customs or Australian Border Force and the Australia Post receptionist put the call through to Customs in order for the caller to pursue his inquiry. Whether the call was forwarded successfully to Customs or not, no such call was recorded by Customs. It was also ascertained subsequently that the accused had again contacted the Australia Post tracking centre, inquiring about the same uncharged consignment on 13 May. He again provided the tracking number and told the reception that "it had been a long time and I haven't got it." He also said it was a gift from South Africa. He was again advised that the parcel was still showing up as ‑ on the records - being with Customs and he was queried about the value of the items which he had been expecting. 10. Against the above broad background, the Crown has served a tendency and coincidence notice with respect to the almost identical circumstances of the cocaine being secreted in two strikingly similar boxes in which the method of concealment and the origin of the box are also strikingly similar. The Crown's principal argument with respect to the tendering of the evidence regarding the uncharged consignment relies upon coincidence reasoning and they have advanced the proposition that it might be tendency evidence as, in effect, a fallback position. 11. The first point of objection on behalf of the accused is in relation to the admissibility of the uncharged consignment in the trial which focuses on the attempt to take possession of the first box at Roselands Post Shop. Coincidence evidence is dealt with in s 98 of the Evidence Act. It requires reasonable notice of the intention to adduce the evidence and a consideration of whether the evidence will, by itself or having regard to other evidence adduced or to be adduced, have significant probative value. The purpose of s 98 is to permit, where the stipulated statutory safeguards are satisfied, the admission of evidence that proves or contributes to proving that the two or more events did not occur coincidentally. It is a form of inferential reasoning, in my view, similar to circumstantial evidence, where the similarity between two or more events and the circumstances in which the events occurred render it improbable that the events occurred coincidentally and it may permit the drawing of an inference from the improbability of coincidental occurrence that a person had a particular state of mind or engaged in certain conduct on the occasion in question. 12. Bathurst CJ reviewed the relevant authorities in relation to the admissibility of coincidence evidence in R v Matonwal & Amood [2016] NSWCCA 174, and made particular reference to the steps for determining the admissibility of coincidence evidence, which had been previously outlined by the Court in R v Gale; R v Duckworth [2012] NSWCCA 174 at paras 30 to 31. I do not propose to set out those paragraphs in this judgment. The essence of the contest in the present trial will be the state of mind or state of knowledge or belief of the accused at the time that he attended the Roselands Post Shop. 13. A number of explanations were advanced by the accused in the course of his conversations and interview with police with respect to his belief regarding the parcel, which he ultimately attended the Post Office in an attempt to collect. One explanation advanced by him was to the effect that it was an unexpected consignment and that he only made steps to inquire about it as a consequence of finding the parcel notification in his own letterbox, i.e. for unit 6. The circumstance that an identically addressed consignment had also been sent, addressed to unit 4/1089, might be viewed by a tribunal of fact as improbable in the absence of some pre‑planning or organisation for the events to occur. 14. The circumstances surrounding the collection of the first parcel inquired about in time ‑ that is, the uncharged consignment, in respect of which inquiries were made on 3 May and 13 May, which included the accused identifying himself by the very name Sheh which was on each of the boxes, is in my view of significant probative value in the Crown's evidentiary pursuit of the accused's state of mind with respect to these illicit consignments and, in particular, the coincidence gives rise to significant probative value with respect to his state of mind when he attended the Roselands Post Shop. In my view, the evidence of coincidence attracts an evidentiary value which is probative of an element of the offence and that probative value substantially outweighs any prejudicial effect it may have on the accused. 15. It is important to note, as the High Court did in R v Dennis Bauer (a pseudonym) [2018] HCA 40, that prejudice does not include the legitimate capacity of evidence to inculpate an accused. The jury will be directed not to use evidence as a form of tendency reasoning, but I propose that the evidence should be admitted. 16. The next substantive challenge to the admissibility of material proposed to be relied upon by the Crown relates to the search warrant which was issued at Burwood Local Court on 23 May 2019 and executed at the accused's premises the same day. The short point with respect to the alleged invalidity of the search warrant rested upon the proposition that it had been obtained as a consequence of an intentional impropriety. The first item sought to be obtained in the execution of the warrant and listed on the face of the warrant and the application, was the actual consignment which had been attempted to be collected by the accused at Roselands Post Shop. It had at all times relevantly been in the possession of police and at no time had physically been acquired by the accused. 17. The submission on behalf of the accused with respect to the inclusion of this item was that its inclusion amounted to impropriety by the police and that it was a deliberate act, not reckless, to have included the actual consignment. The basis for the impropriety was said to be "that the police would have encountered significant difficulty in obtaining the search warrant as it is unlikely a search warrant would have had sufficient grounds to have been granted without the impropriety exercised here." The submission was further developed because, according to the submission for the accused: "The police knew in requesting a search warrant that the strength of their request would diminish significantly if the consignment parcel was not included as a condition and therefore included it as a primary condition, despite knowing it remained in police possession." 1. The evidence of Senior Constable Woods, who prepared the application for the search warrant and was involved in its execution, was that the inclusion of the box ‑ that is, the actual consignment ‑ was simply a mistake. He well knew that it was actually in police possession. While the police were seeking items of evidence that might connect the accused with the consignment, the inclusion of the consignment itself as an item being looked for was clearly either deliberate, as contended by the accused, or a mistake, as indicated in his evidence by Senior Constable Woods. 2. I accept the evidence of the police officer in this regard. In the course of cross‑examination he conceded that he had made an error, putting the consignment parcel in the warrant. At no point in the cross‑examination was the proposition put to him, let alone agreed with, that the officer had deliberately included the actual consignment because of any concern that the strength of the application would diminish significantly or at all, if the parcel was not included as one of the items being looked for. 3. I am strongly of the view, as discussed with counsel in the course of submissions, that the excision of the consignment parcel itself would have played no effect whatsoever on the successful application for the issue of the search warrant. The other items being sought related in terms to items of clothing and footwear which were clearly relevant to the proper identification of the accused as the person who had attended Roselands Post Shop. Other items which were sought were potentially aspects of evidence which may demonstrate his connection with the parcel itself or may prove to be the indicia of involvement in drugs. I am not satisfied that there was any impropriety such as would warrant setting aside the search warrant. Even if one formed a different view of the inclusion of the parcel itself in the application, however, the doctrine of severance would permit the removal of that condition from the warrant. 4. I accept the summary of the various proceedings in Malubel Pty Ltd v Elder (1998) 88 FCR 242; (1998) 103 A Crim R 568, set out in the Crown's written submissions, in which the power to sever invalid portions of a warrant, which had been identified earlier in Parker v Churchill (1985) 9 FCR 316, was applied by Moore J in the first instance application relating to the search warrant in those proceedings and which approach was confirmed by the Full Court (Nicholson, Burchett and Madgwick JJ), [1998] FCA 1305. I should observe that while D B McGovern of junior counsel, as he then was, was successful in getting an interim injunction in chambers from Kirby J pending a special leave application, such application was in due course refused by the High Court. In that the transcript of the application for special leave, reference was made to Peters v The Queen [1998] HCA 7; 192 CLR 493 and I note the observations of the High Court in those proceedings. I decline to set aside the search warrant. 5. The application to set aside the warrant was intended to provide a springboard to an argument that various items obtained by police in the course of the search had therefore been obtained illegally or improperly. In light of my finding that the execution of the warrant was itself lawful, such an argument based upon s 138 of the Evidence Act no longer arises. For completeness, I should indicate that, had I been satisfied that impropriety was involved in the application for the search warrant, I would nonetheless have admitted the evidence pursuant to an exercise of appropriate discretion. A related objection focused specifically on questions 150 to 154 of the record of interview that was subsequently conducted with the accused. It was based upon an objection to those questions and answers which related to the consignment parcel, which it was submitted wrongly formed part of the search warrant. 6. The other bases of objection, in essence, were that the questioning was unfair and a deliberate attempt by police to confuse the accused. The Court has had the opportunity of both reading the transcript of the record of interview and viewing the actual recorded interview itself. It suffices to observe that in my determination there is no basis for a conclusion that there was any deliberate attempt to confuse the accused. I do not propose to be discursive in this aspect of my judgment, but it is appropriate to note that the accused advanced a number of varying explanations with respect to the steps he took to try and collect the consignment and a number of varying explanations with respect to the parcel collection card or notice; he voluntarily participated in the record of interview and persisted in indicating that he wished to put his side of the story regarding his attempt to obtain the consignment and the reasons that it may have been addressed to him or at least a name similar to his. I see no reason to excise the identified portions of the interview. 7. Contained in the data in the memory of one of the mobile phones which was seized, police in due course found messages between the accused and other persons which a tribunal of fact, may infer related to trafficking in drugs. As indicated earlier, under the bed at the accused's residence and, significantly, not in the kitchen or some other part of the apartment, police located small clip seal bags of a type readily able to be utilised to contain small quantities of an illicit drug. Indeed, in the course of the record of interview, the accused advanced the explanation that he possessed the bags because friends of his used "weed". 8. Also contained in within the data of the mobile telephone were images of what said to be $30,000 in Australian cash notes which had been photographed in the accused's apartment on 23 March 2019. There were also photographs or images found in the memory of the phone which show a bag of white powder, together with what appears to be opened packaging, which is highly similar, if not in effect identical in appearance, to the packaging containing the cocaine in both the charged and uncharged consignments in May 2019. Those photographs and messages with respect to them on the mobile phone derived from January 2019. Both a general objection to all items of evidence that might suggest prior involvement in illicit drug supply as well as specific and particular objection to some of the items that I have identified were taken on behalf of the accused. 9. With respect to the images and messages regarding the bag of white powder from January 2019, it was submitted amongst other aspects that the temporal gap was such as to remove or substantially diminish any relevance to a consideration of the state of mind of the accused when he attempted to collect the box, the relevant box in May 2019. There is in my view a similarity between evidence of prior events which are relied upon for relationship or context in different types of cases, often involving sexual allegations and the present situation. As Kirby J pointed out in R v AN [2000] NSWCCA 372; 117 A Crim R 176, at para 46: "Dealing with events before the offence, time, as such, appears not to be a limitation upon the reception of relationship evidence. The test is logic and the capacity of the event to explain the conduct charged." 1. A particular passage from McHugh J in Harriman v The Queen [1989] HCA 50; 167 CLR 590 and 88 ALR 161, was adverted to by Kirby J. 2. The particular passage referred to is at p 190 of the ALR. McHugh J referred to R v Garner ((1963) 81 WN (Pt1) (NSW) 120) which was a charge of assault occasioning actual bodily harm: "Evidence of a long course of cruelty and continued ill treatment by the accused to the complainant was rightly admitted because it showed the atmosphere of hostility which existed and made more probable than not that the assault in question had occurred." 1. Moreover as Sugerman J had said at 123: "It was scarcely possible to present the case in an intelligible and real fashion without evidence as to what occurred during the period of the relationship." 1. In R v Hissey (1973) 6 SASR 280, the South Australian Full Court held that on a charge of murder by means of a blow to the abdomen, evidence of previous acts of violence by the accused to the deceased was admissible both on the issue of malice of forethought and whether the accused was responsible for the death. The Court said that the evidence was admissible because it showed the general terms upon which the parties were living. Likewise, in sexual cases, evidence of previous acts of misconduct by the accused in relation to the complainant would usually be admissible because it tends to prove why or how on the occasion in question the offence occurred in the circumstances alleged. 2. I should indicate that his Honour McHugh J in Harriman went on to deal with R v Ball [1911] AC 47, which his Honour said: "Although R v Ball is often treated as a similar facts case, the evidence proving previous acts of incest in that case was admissible in my opinion because it tended to prove the nature of the relationship between the brother and sister. Their sexual relationship together with evidence which showed they slept in the same bed, made it likely that incest took place between the dates charged in the indictment". 1. The consideration of the force of logic also underpinned the decision of the High Court in Wilson v The Queen [1970] HCA 17; 123 CLR 334, where Barwick CJ said at 339: "The touchstone is logic. It is not that all of the evidence of the relationship of the parties is admissible but only that from which a relevant inference may logically and reasonably be drawn". 1. Wilson, of course, was the case involving the allegation of murder by a husband of his wife and the admission into evidence of expressions of enmity between them which was able to be given by third parties prior to the shooting. 2. Similar observations invoking the force of logic regarding prior involvement in drugs was, in fact, the subject of the High Court decision in Harriman. Brennan J, at 164 to 165 of the ALR said: "Evidence of prior involvement by Harriman and Martin in the sale of heroin in association, evidence (from the witness Lisk) of prior sales of heroin by Harriman, and evidence of Harriman's use of heroin were clearly prejudicial and were not admissible unless something more than the commission of prior offences was thereby revealed. In my opinion more was revealed. The concatenation of these pieces of evidence showed that Harriman, prior to April 1987, had participated repeatedly in one role or another in heroin dealing in Western Australia. He had participated in a trade notorious for its clandestine organisation, the creation of distribution networks of dealer-users, the payment of large sums of money enforced (if need be) by vicious measures, and the urgent demand by addicts for sources of supply.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 events charged and the whole of the circumstances of the case". 1. Toohey J at 175, said: "Now it is true that that such evidence was also likely to demonstrate propensity on the part of the applicant to engage in heroin trafficking, but the evidence went beyond that. It was relevant to the character of the association between the applicant and Martin and was admissible for that reason, though questions of prejudice aside, possible misuse of the evidence by the jury required that its purpose be explained with some care to them" 1. McHugh J at 193 described the nature of the relationship between the various protagonists and then said this at 193, line 43: "In that setting, evidence that Martin and the applicant were jointly involved in selling heroin on several occasions to Lisk for resale, was compelling evidence that Martin or the applicant were acting in concert to obtain heroin for Lisk when they travelled to Chang Mai." 1. His Honour went on, at p 194, and said: "But the disputed evidence once accepted put the matter beyond doubt. In the absence of evidence to the contrary no rational jury could accept that two persons, jointly involved in selling heroin in Australia, would leave the country, meet up in Bangkok and travel together on a long overnight bus journey to a town where heroin was obtained and mailed to four addresses in Australia including two addresses supplied by one to the other without both persons being involved in the purchase and importation of the heroin." 1. His Honour went on: "Moreover the probative force of the disputed evidence concerning the joint heroin dealings clearly transcended its merely prejudicial effect. The evidence had a tendency to prejudice the applicant because the jury might think that he was a person who, by reason of his propensity to deal in heroin, was the sort of person who would import heroin into Australia. That potential prejudice however was clearly outweighed by the probative force of the evidence when considered with the other evidence because it indicated to a point of near certainty that Martin and the applicant were acting in concert in Chang Mai." 1. The question as to whether or not particular items of available evidence show no more than a propensity to commit crime or whether such evidence is relevant for another relevant issue has been the subject of observation in the context of drugs, not only in Harriman but in numerous other cases. 2. In Sultana v The Queen (1994) 74 A Crim R 27, Gleeson CJ, as his Honour then was in this jurisdiction, dealt with a challenge to conviction based upon the admission of a number of items which suggested that the appellant was an established drug dealer. 3. At p 29 his Honour said: "Where the issues are whether a person was found in possession of heroin and whether he or she possessed it for supply, the fact that the person is currently in the business of a drug dealer is a fact relevant to the issues in the case. It is not mere evidence of propensity to commit crime or bad character". 1. His Honour then referred to Harriman and also to Thompson and Wran v The Queen (1968) 117 CLR 313 which, if I recall correctly were housebreaking implements: "If for some reason in a civil or criminal case there were an issue as to whether a man was found in possession of clothing material with an intention of cutting it, it would ordinarily be of relevance to show that the man was carrying on the business of a tailor. That might be shown by evidence that when asked his occupation he said he was a tailor. It might also be relevant to prove that he owned a tape measure, a pair of tailor's scissors, a quantity of samples of cloth and some books showing a collection of clothing designs. Evidence that tends to show that a person is in the business of dealing in heroin, also tends to show a propensity towards crime, but in a case such as the present, it is admissible on the former account not the latter. Moreover, subject to discretionary considerations mentioned below, the fact that it bears the latter character does not detract from its relevance or render it inadmissible." 1. The High Court in The Queen v Falzon [2018] HCA 29, a decision of the Full Court, Kiefel CJ and their Honours Bell, Keane, Nettle and Gordon JJ, cited the observations of Gleeson CJ in Sultana with approval. The matter before the High Court in Falzon related to the finding of in excess of $120,000 cash at the respondent's home, which had been admitted, together with other items at trial, as evidence of his ongoing involvement in the trafficking of cannabis. An issue at trial was whether the cannabis, the subject of the trial, had been in possession for the purpose of sale and not for personal use. The majority decision in the intermediate court after trial, had quashed the conviction and determined that the evidence of the cash should not have been admitted (Falzon v The Queen [2017] VSCA 74). The dissenting judgment of Whelan JA was that the finding of the cash was admissible as an item of circumstantial evidence. That, in conjunction with evidence of other indicia of drug trafficking, was capable of supporting the inference that the respondent was carrying on the business of trafficking in cannabis and that therefore his purpose in possessing the various quantities of cannabis, was indeed for the purpose of sale. 2. The High Court found that Whelan JA "was plainly correct". Decisions of various intermediate courts in other States which had also followed the reasoning in Sultana, were specifically approved by the High Court. The discretionary exclusion of such evidence was also found by the High Court to have been an evinced error in the judgment of the majority in the Victorian Court of Appeal. However, the need for a specific direction, described as an anti‑propensity reasoning direction, was also referred to by the High Court in the joint judgment. 3. In my view, the similarity between the images from January 2019 and the various communications set out in detail in the written submissions and identified in the course of argument before me, together with the finding of the cash and the circumstance of the highly similar consignment, that is the uncharged consignment, are relevant and admissible in founding an available inference that the accused was involved in drug trafficking, including the likely receipt of items and also the dissemination of items, which are highly probative in a consideration of his state of mind at the time that he attended the Roselands Post Shop or Office on 17 May 2019. The material may also be well relevant to a consideration of some of the explanations anticipated to be advanced in evidence and advanced in the Record of Interview by the accused. 4. I should note that in the course of the submissions before me, some particular identified messages and communications to which objection was initially taken, have been indicated by the Crown to be voluntarily excised. However, the balance of the objected material is in my view relevant and admissible for the reasons that I have indicated. 5. I am not of the view that an exercise of discretion would warrant their exclusion. There will however be a direction as to non‑propensity reasoning and the appropriate relevance of the material will be given to the jury by me. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2023