R v Smith [2016] NSWDC 92

District Court New South Wales

Medium Neutral Citation: R v Smith [2016] NSWDC 92 Decision date: 22 April 2016 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Evidence of previous travel to Australia admissible for 'tendency' purposes. Catchwords: Criminal - Evidence, tendency, prior importation of a 'substance'. Legislation Cited: Evidence Act 1995 Cases Cited: R v AW [2009] NSWCCA 1 R v Dupas [2012] VSCA 328 R v IMM [2016] HCA 14 R v Pfennig ((1995) 182 CLR 461 R v Shamouil [2006] NSWCCA 112 R v XY [2013] NSWCCA 121 R v Yates [2002] NSWCCA 520 Category: Procedural and other rulings Parties: Commonwealth Director of Public Prosecutions - Crown Andrew David Smith - Accused Representation: Counsel: Mr K Ginges – Crown (Cth) Ms S Ormond-Hales - Accused

Solicitors: Director of Public Prosecutions (Cth) SCT Lawyers - Accused File Number(s): 2013/00323415

Judgment - Application by Accused to exclude certain evidence

INTRODUCTION 1. HIS HONOUR: Application has been made by the accused to exclude evidence concerned with a number of issues or events said to be relevant by the prosecution to the proof of guilt of the accused in respect of the current indictment. Those events may be summarised in the following way: 1. The circumstances of the accused's visit to Australia between 16 and 19 March 2013; 2. The travel and arrival in Australia of Niko Nuora (here and after to be referred to as 'Niko') and Eric Van Zwam (here and after to be referred to as 'Van Zwam') on 22 March 2013, the circumstances of their arrest in Sydney on that day and the matters pertaining to their alleged importation of a commercial quantity of border controlled drugs, including the circumstances of their recruitment as importers; 3. The accused's connection with those men in Gambia and the Ivory Coast; 4. The accused's travel to Indonesia between 28 May 2013 and 4 June 2013; 5. Other activities of and representations made by the accused between 19 March 2013 and his arrival in Sydney on 23 October 2013 in relation to matters concerning the activities of Niko and Van Zwam and related matters. 1. A number of bases were raised as pertinent to the application of the accused. Those matters generally stated were, as I understand it, firstly, that the evidence was not relevant (s 55 Evidence Act 1995, herein after referred to as "the Act"). In relation to that matter, it was submitted that the evidence was not relevant either as "tendency" evidence or as "context" evidence. 2. Secondly, it was submitted that in the context of the Crown's "Tendency Notice" (the 'Notice'), which I will refer in a moment, the evidence ought be excluded because, either, it did not have relevant "significant probative value" (s 97(2) of the Act), or should otherwise be excluded pursuant to the terms of s 101(2) and/or s 137 of the Act. 3. It is obvious that particular parts of the sprawling mass of evidence I have had to consider have varying claims to relevance, and obviously varying qualities of probative value that raise different issues, both in terms of assessing the probative value, and, if needs be, identifying relevant "prejudice" or "unfair prejudice".