New South Wales Court of Criminal Appeal CITATION: STEVENS v REGINA [2007] NSWCCA 252 HEARING DATE(S): Wednesday 4 April 2007 JUDGMENT DATE: 28 August 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hoeben J at 2; Hall J at 3 DECISION: Leave to appeal granted; appeal dismissed. CATCHWORDS: Criminal Law – Appeal against sentence – Evidence – Tendency and coincidence – Principles to apply - Whether the evidence had significant probative value – Substantial and relevant similarity – Strong circumstantial evidence – Supply of a large commercial quantity of a prohibited drug – Sections 97, 98, 101, 136 Evidence Act 1995 (NSW) Drug Misuse & Trafficking Act 1985 LEGISLATION CITED: Evidence Act 1995 Law Reform (Controlled Operations) Act 1997 Regina v Fletcher [2005] NSWCCA 338 CASES CITED: Regina v Goodfellow (1994) 33 NSWLR 308 Regina v Hamzy (1994) 74 A Crim R 341 Regina v Zhang [2005] NSWCCA 437 PARTIES: STEVENS, Anthony Bernard v REGINA FILE NUMBER(S): CCA No. 2006/4947 COUNSEL: App: P J D Hamill SC Crown: M A Wigney SOLICITORS: App: Hardinlaw Crown: Commonwealth Director of Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0118 LOWER COURT JUDICIAL OFFICER: Berman DCJ LOWER COURT DATE OF DECISION: 23 June 2006 IN THE COURT OF CRIMINAL APPEAL No. 2006/4947 McCLELLAN CJ at CL HOEBEN J HALL J TUESDAY 28 AUGUST 2007 ANTHONY BERNARD STEVENS v. REGINA JUDGMENT 1 McCLELLAN CJ AT CL: I agree with Hall J. 2 HOEBEN J: I agree with Hall J. 3 HALL J: Anthony Bernard Stevens made application dated 15 December 2006 for leave to appeal against the sentence imposed in the District Court of New South Wales (Berman DCJ.) on 23 June 2006. 4 On 15 June 2006, the applicant pleaded guilty to an indictment containing a single count as follows:- " Anthony Bernard Stevens between about 24 February 2005 and about 5 March 2005 at Sydney, New South Wales, did supply a large commercial quantity of a prohibited drug, namely, cocaine." 5 In the written submissions by the Crown (paragraph 2) it is stated:- "At the time that he entered his plea, the applicant was aware that, in accordance with the principles considered in Hamzy , the Crown alleged that between 24 February and 5 March 2005, the applicant was involved in a criminal enterprise or activity that incorporated two individual acts of supplying cocaine, the first of which occurred on 25 February 2005, and the second of which occurred on 4 March 2005. These individual acts could fairly and properly be identified as part of the same criminal enterprise." 6 As the Crown observed, the applicant did not object to the indictment, even though it was clear that he disputed that he was involved in the act of supply that occurred on 25 February 2005. Accordingly, he disputed that the amount of cocaine involved in the supply was a large commercial quantity, as defined in the legislation (see paragraph [8] below). The hearing proceeded in this way with the applicant submitting that the quantity of cocaine particularised in the indictment was a circumstance of aggravation, rather than an element of the offence to which he was pleading guilty. 7 On the basis of the findings of fact made, the conclusion followed that the applicant had supplied a total amount of cocaine of just under two kilograms and, therefore, a large commercial quantity. The Crown has observed that it is permissible, for the purposes of sentencing, to accumulate amounts individually supplied pursuant to a single criminal enterprise of supplying cocaine to establish that a large commercial quantity of cocaine was supplied: Regina v. Hamzy (1994) 74 A. Crim. R. 341; Regina v. Goodfellow (1994) 33 NSWLR 308. 8 Berman DCJ was satisfied beyond reasonable doubt that the applicant was involved in the act of supply on 25 February 2005 and, accordingly, he was sentenced on the basis that he had supplied just less than two kilograms of cocaine, that being more than a large commercial quantity, as defined in Column 5 of Schedule 1 to the Drug Misuse and Trafficking Act 1985. 9 The maximum penalty for supplying a large commercial quantity of cocaine is life imprisonment. 10 The applicant was sentenced to a non-parole period of seven years to commence 17 May 2005 and to expire 16 May 2012 and to a total sentence of 11 years to date from 17 May 2005 and to expire on 16 May 2016. 11 In the application, the applicant relied upon the following grounds:- Ground 1: The learned sentencing judge erred in his application of the provisions of the Evidence Act and, in particular:- (a) erred in failing to apply the provisions of s.101 to the evidence of 'tendency'; (b) erred in admitting the evidence as tendency evidence; (c) erred in confusing evidence of tendency with evidence of coincidence; (d) erred in admitting hearsay evidence as evidence of an 'admission' when the author of the relevant statement was not established. Ground 2: The sentencing proceedings miscarried as a result of the learned sentencing judge suggesting arguments to one party (namely, the prosecution) as to the basis upon which certain evidence might be admissible (i) as evidence of an admission, and (ii) as evidence of 'tendency and coincidence' in circumstances where the prosecution did not put the evidence forward on those bases. Ground 3: The learned sentencing judge erred in finding beyond reasonable doubt that the applicant was in possession of cocaine ('slightly less than a kilogram') on 25 February 2005 and was thereby guilty of supplying a large commercial quantity of cocaine between 25 February and 4 March 2005. Ground 4: A different, less severe, sentence is warranted and ought to have been imposed. The Crown case 12 The Crown case essentially comprised a statement of facts. For the purpose of resolving the objections to specific paragraphs referred to below, his Honour made a direction, by consent and pursuant to s.4(2)(a) of the Evidence Act 1995 (NSW) that that Act applied to the proceedings. 13 On objection to paragraphs 4, 10 and 11 of the statement of facts, paragraphs 10 and 11 were admitted for a limited purpose pursuant to s.136 of the Evidence Act. 14 Objection was also taken to the last three sentences of paragraph 10 of the statement of facts. These related to the contents of a note. The applicant objected to the evidence of the note on the basis that authorship of it could not be attributed to the applicant and it was hearsay and, accordingly, was excluded by s.59 of the Evidence Act. 15 Apart from those objections, the applicant did not dispute the facts in the statement of facts. The Crown observed that no objection was taken to the admission of the evidence on the basis that any of the evidence was tendency or coincidence evidence that should have been excluded by reason of ss.97, 98 or 101 of the Evidence Act. 16 No application was made to limit the use to which any of the evidence (other than paragraphs [10] and [11]) could be put by reason of s.101 or s.136 of the Evidence Act. 17 The dispute in question was whether the sentencing judge could, and should, have drawn an inference from the facts in the statement of facts, beyond reasonable doubt, that the applicant was involved in the supply that occurred on 25 February 2005. 18 It was contended on behalf of the applicant that, in this respect, the sentencing judge erred and, in particular, that the error arose by reason of a failure to apply s.101 of the Evidence Act by admitting evidence relating to the supply that occurred on 4 March 2005 and by admitting the last three sentences of paragraph 10 of the statement of facts. 19 The Crown submitted that, to an extent, Berman, DCJ. employed coincidence reasoning in arriving at his conclusions. His findings, it was contended, did not involve any tendency reasoning. The Crown also observed that his Honour's conclusion that the applicant supplied the cocaine on 25 February 2005 was not dependent on the evidence relating to the note. Facts 20 The relevant facts in the statement of facts recorded matters relating to the events on 23 and 25 February 2005 and events relating to 28 February to 5 March 2005. In relation to the period between 23 and 25 February 2005, the evidence was that arrangements were made between a registered police informant known as "Tom" and a person who need only be referred to as "P" in relation to the supply of approximately one kilogram of cocaine. 21 On the evening of 25 February 2005, "Tom" went to "P's" house in Maroubra. He had with him a kilogram of cocaine which had been provided to him by police under an authority granted under the Law Reform (Controlled Operations) Act 1997. 22 "Tom" and "P" drove to Torrington Road, Maroubra. The car stopped 50 metres in front of a Toyota Landcruiser which had Victorian number plates which were registered to the applicant. 23 "Tom" gave the cocaine to "P" who left the vehicle and walked towards the Landcruiser. However, Tom did not see what happened next, because it was dark. "P" returned with a black bag. The bag contained $165,000 in cash and a note which read "I want one the same again. If I do not ring you midday tomorrow I will be in the same spot Friday week at the same time". The note, as I have earlier observed, was objected to as being inadmissible. 24 Police subsequently followed the Landcruiser from a point in Maroubra to Albion Park, near Wollongong. 25 On Friday 4 March 2005, "Tom" again went to "P's" house with a kilogram of cocaine, again supplied by police pursuant to a controlled operation. "P" was given the cocaine and left the car and came back with a bag containing money. 26 The applicant's car was observed by police in the vicinity of Malabar Road and it was followed to Victoria. Victorian Police stopped the vehicle and the cocaine identified as that the police had given "Tom" was located in the vehicle. 27 It was contended by counsel on behalf of the applicant before Berman DCJ that:- (a) The Crown had the onus of establishing beyond reasonable doubt that the applicant actually came into possession of cocaine on 25 February 2005. (b) That the applicant's presence on 25 February 2005 goes no further than evidence concerning the establishing that his vehicle was in the same area. That was insufficient to rebut a reasonable hypothesis consistent with innocence, namely, that the parcel of cocaine went to somebody else in the street at the time of the events in question. 28 It is clear that the statement of facts relied upon by the Crown established the following events in respect of the evening of 25 February 2005:- • By pre-arrangement, "Tom" and "P" met at Maroubra for the purpose of effecting a transaction involving the supply of cocaine by "Tom" to "P" . • Both men travelled with the cocaine to Torrington Road, Maroubra where the vehicle in which they were travelling stopped at a point on the roadway. There was no suggestion that they were intending to enter a house or other premises or property located in that street, nor did they do so. • At the time of their arrival in Torrington Road, there was also located in that street a vehicle registered in the name of the applicant. The vehicle in which "Tom" and "P" were travelling stopped 50 metres in front of the first-mentioned vehicle. • The only known activities that occurred after "Tom" and "P" arrived at Torrington Road and as disclosed in the facts were:- (a) That "P" alighted from his vehicle and walked towards the vehicle registered to the applicant. (b) One minute later, "P" returned to his vehicle. He had with him a black leather type bag. (c) As he was re-entering the car, the vehicle in (a) drove past "P" and "Tom". (d) "Tom" and "P" drove back to another address in Maroubra. (e) The vehicle in (a) was followed by police from a point in Maroubra. The applicant was seated in the driver's seat. The vehicle was followed to an area near Wollongong. 29 The facts disclosed in relation to the transaction on 4 March 2005 have features in common with the events of 25 February 2005. These included facts (a) to (e) below:- (a) That both "Tom" and "P" , after meeting at "P's" house, drove to Malabar Road, Maroubra. (b) "Tom" there handed to "P" a bag containing 999.7 grams of cocaine. (c) "P" alighted from his vehicle and returned to it in one minute. (d) When he returned, "P" handed "Tom" a small luggage bag about the size of a computer laptop bag. The bag contained money. When he returned, "P" no longer had the cocaine. (e) "Tom" had been supplied, pursuant to the controlled operation, with the cocaine at about 8.30 pm. On that evening, the applicant's car was first seen in the Coogee area at 7.35 pm. At 8.50 pm, the vehicle was seen in the vicinity of Marine Parade and Torrington Road, Maroubra. At 8.58 pm, the vehicle did a u-turn and drove off. At 9.00 pm, the vehicle was again seen at Torrington Road and at about 9.15 pm, the vehicle was followed along Marine Parade, Maroubra. The vehicle was followed until 12.05 pm on 5 March 2005 by which time it reached Victoria. (f) At 4.54 pm, the applicant's vehicle was stopped by Victorian Police, who searched the car. During the search, cocaine, still in the Myer plastic bag in which it had originally been placed by police, was found hidden in the back of the vehicle which had been driven by the applicant. 30 There were essentially two points argued on the appeal as to whether the evidence supported the conclusion reached by Berman DCJ, namely, that the quantity upon which the applicant was to be sentenced was a "large commercial quantity". The first concerned the issue as to the admission into evidence and reliance upon the "note". As observed in paragraph [14] above, the contention was that there was no evidence that established the applicant was the author of the note. The second concerned the issue as to whether Berman DCJ erred in his approach to the question of "tendency and coincidence" by regarding the events on 4 March 2005 as probative of the applicant's involvement in the act of supply of cocaine as charged on 25 February 2005. 31 I consider that I should deal with the second of the two points referred to in paragraph [30] as if there was no error in relation to that point then the first point strictly does not arise. 32 In relation to Grounds 1(a), (b) and (c), the Crown submitted:- "15. The applicant's contention that his Honour erred in admitting the evidence of the events of 4 March 2005, or using that evidence as tendency or coincidence evidence, must be rejected for four reasons. First, because the applicant, at no time, objected to this evidence or its use; second, because his Honour did not admit or use the evidence as tendency evidence (as now contended by the applicant); third, because the evidence was, in any event, directly relevant to the charge in the indictment and was not merely admissible as tendency or coincidence evidence; and fourth, because the evidence was highly probative and gave rise to no unfair prejudice." 33 For reasons developed below, I consider that the Crown has made good its submission, for the four reasons stated in its submission and set out above. Evidence as to the applicant's involvement/participation in the drug supply on 25 February 2005 34 Mr Hamill SC contended that there was no evidence establishing beyond reasonable doubt that the applicant was involved in the first transaction. In relation to it, the Crown relied upon "a series of circumstantial inferences". 35 In his oral submissions, Mr Hamill stated:- "The first thing is whether, on the primary facts as accepted by both sides, there was a reasonable hypothesis consistent with innocence, whether it was established beyond reasonable doubt the applicant was involved it the first transaction. It is not a case of coincidence reasoning, except insofar as there is always an element of coincidence reasoning in every circumstantial case. It is really a combination of facts which lead to only one possible, or rational, explanation." 36 Mr Hamill went on to state that the evidence did not permit Berman DCJ to find that the applicant was involved beyond reasonable doubt in the first transaction. In this respect, he observed that the cocaine in question was never recovered, it was never seen in the hands of the applicant, nor was the bag seen in his hands. Nor was it seen to be placed or taken into the applicant's car. He contended that the evidence did not exclude the possibility that the man, "P", was the recipient of the drugs or that he passed them on to a third unknown person. "P's" house and vehicle were not searched and "P" was not called to give evidence to exclude the possibility that he was a person ultimately in possession of the drug. Further, his vehicle was not searched after it was seen to leave the Maroubra area. 37 Mr Hamill referred to the evidence which established that, because it was dark, there was no evidence as to "P" having walked to and reached the applicant's vehicle. Additionally, there was no evidence of the number of people in his vehicle on the evening in question. Consideration 38 The evidence and the matters that it establishes, as summarised in paragraph [28] above, in my view, constituted strong circumstantial evidence that the cocaine in question was delivered to and received by the applicant on 25 February 2005. 39 Apart from that evidence, Berman DCJ was, in my opinion, entitled to have regard to the facts established concerning the transaction that took place on 4 March 2005 and to use that evidence in reaching the conclusion, beyond reasonable doubt, that the applicant was a party to the transaction on 25 February 2005 and received just under one kilogram of cocaine from "P". 40 I accept the Crown's submission that in his Honour concluding that the 4 March 2005 supply had significant probative value in relation to the question whether the applicant was also involved in the 25 February 2005 supply, that such finding was plainly open, as the evidence was capable, to a significant extent, of rationally affecting the assessment of the probability that the applicant was involved in the supply that occurred on 25 February 2005. The Crown correctly, in my opinion, submitted:- "… having regard to the events of 4 March, it was a highly improbable coincidence that the applicant was innocently in his car parked 50 metres from where Tom and (P) stopped on Torrington Road on the evening of 25 February …" 41 At the hearing, no issue was taken as to the failure by the Crown to serve a notice pursuant to s.98(1)(a) of the Evidence Act 1995 and the Crown in fact relied upon the provisions of s.98, the coincidence rule. On the issue of the quantity of cocaine in the applicant's possession, Berman DCJ, in his judgment of 15 June 2006, stated:- "The Crown asks me to find, beyond reasonable doubt, that what occurred on that evening was that [P] gave the cocaine to this offender. The Crown says that whilst no-one actually saw that occur, I can infer that that is what in fact took place because of what later occurred on 4 March, that is one week later. The Crown relies on coincidence and tendency reasoning, saying that I can conclude beyond reasonable doubt from what occurred on (sic) 5 March 2005 that the offender received the cocaine on 25 February 2005. I should indicate at this stage that Mr Bromwich says that it is not permissible to reason back, using tendency reasoning, tendency only operates one way. I do not accept that is a correct statement of law. Mr Bromwich was unable to assist me with any authority establishing that as a correct statement of law." 42 His Honour then addressed this last-mentioned issue, stating:- "… I am satisfied that there is nothing as a matter of logic or law to prevent tendency reasoning being used to reason backwards in time as well as forwards in time …" 43 His Honour then considered the events that occurred on 4 March 2005. In doing so, he observed that there were many "common features" between the two occasions, referring in particular to the fact that the applicant's vehicle was not only in the same area, it was parked in exactly the same street. The accused was in the vehicle on both evenings, although he was not seen in it on the first occasion until a short time after the transaction. 44 His Honour observed that "P" and "Tom" were also in the area on each occasion, and that on each occasion after a drug transaction was concluded, the applicant headed south, not just a small distance, but, on the first occasion reaching the Wollongong area. On the second occasion, he went all the way to Victoria. 45 His Honour then stated:- "I am satisfied beyond reasonable doubt from the coincidence of features, that what occurred on the first occasion was that the offender received the parcel of cocaine which police had earlier supplied 'Tom'. I am satisfied that although no-one directly saw that, the circumstances relied on by the Crown are such that there is no reasonable inference other than the conclusion that Mr Stevens received the first parcel. I make this finding even in the absence of the note to which I have earlier referred, the note is icing on the cake. I am satisfied that were it necessary, the note would be powerful evidence that the offender wrote that note and is an admission by him that he was involved in the first transaction. The only qualification to the high probative value of the note concerns the fact that the transactions were not two weeks apart as the note might suggest, but one week apart, however, given the circumstance that in the note there is a reference to the possibility of a phone call being made, I do not regard that as significantly weakening the probative value of the note. I will therefore sentence Mr Stevens on the basis that he supplied more than the large commercial quantity of cocaine in the sense that on the two occasions I have referred to, he received about one kilogram for the purposes of supplying it." 46 In Regina v Anna Zhang [2005] NSWCCA 437, Simpson J analysed the processes by which evidence may be tendered under s.98 of the Evidence Act. They were also discussed by her Honour in Regina v Fletcher [2005] NSWCCA 338 in relation to s.97 of the Evidence Act. 47 In the course of setting out the relevant principles (paragraph [139]), her Honour stated:- "… the task of the judge in determining whether to admit evidence tendered as coincidence evidence is therefore essentially an evaluative and predictive one. The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in the light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant probative value." 48 Her Honour observed that, in the case of coincidence evidence, an anterior step is required by s.98(2):- "… it is necessary to determine whether the two or more events, the subject of the tendered evidence, are substantially and relevantly similar and whether the circumstances in which they (are alleged to have) occurred are substantially similar. Since admission of the proposed evidence depends upon the existence of relevant similarities, it is obvious that this assessment is to be made by the judge and not left to the tribunal of fact." (at [140]) 49 This analysis is of assistance in evaluating and determining whether the evidence in relation to the second transaction that occurred on 4 March 2005, is of probative value in establishing that the applicant received the quantity of cocaine on the first occasion. 50 I consider, with respect, that the analysis and approach adopted by Berman DCJ was correct. It is clear from that the facts concerning the two events as referred to above that they were substantially and relevantly similar and that the circumstances in which they occurred were substantially similar. I need not here repeat the precise points of similarity as they are readily apparent from the discussion of them earlier in this judgment. 51 Coincidence evidence within s.98(1) is evidence that a party seeks to have adduced to prove that "… a person did a particular act …". The evidence in relation to the second transaction, whilst evidencing the particular facts relating to it, also, in my opinion, constituted "coincidence evidence" in relation to the first transaction and the applicant's participation in it. 52 I do not consider it is apt to describe the use of the evidence concerning the second occasion as involving some form of "backwards" reasoning. The Court was entitled to evaluate the probative value of the second transaction on 4 March 2005 in light of the evidence concerning the first transaction on 25 February 2005 and consider that the former reinforced what I have earlier described as a strong circumstantial evidence case in order to reach the conclusion, beyond reasonable doubt, that the applicant had indeed been involved in the supply of the quantity of cocaine on 25 February 2005. 53 In the circumstances of the conclusion which I have expressed in that regard I do not consider that it was necessary for Berman DCJ to determine the issue of admissibility of the "note". Nor do I consider it necessary for this Court, in light of the conclusion which I have expressed above, to deal with that issue. 54 I have, accordingly, concluded that leave to appeal should be granted but that the appeal against the judgment of Berman DCJ given on 15 June 2006 should be dismissed. 55 Ground 4 of the Grounds of Appeal to the Notice of Appeal ("4. A different, less severe, sentence is warranted and ought to have been imposed"), appears to be related to the question of the sentencing judge's findings and whether or not the applicant ought to have been found guilty of supplying a large commercial quantity of cocaine. 56 The written submissions do not separately identify any other basis on which it was contended that a less severe sentence was warranted and ought to have been imposed. 57 An affidavit of Paul Hardin, solicitor, sworn on 3 April 2007 was relied upon in the event that the Court came to re-sentence the applicant. However, as I have stated, that occasion has not arisen. 58 Accordingly, I propose the orders of the Court be as stated in paragraph [54]. ********** 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.