REGINA v LISA BEVAN [2002] NSWCCA 224

New South Wales Court of Criminal Appeal

CITATION : REGINA v LISA BEVAN [2002] NSWCCA 224 FILE NUMBER(S) : CCA 60578/01 HEARING DATE(S) : 16 April 2002 JUDGMENT DATE : 16 April 2002

PARTIES : REGINA v LISA BEVAN JUDGMENT OF : Mason P at 1; Barr J at 53; McClellan J at 54

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Twigg DCJ OFFICER :

COUNSEL : Crown: P Barrett Appellant: A P Berman SC SOLICITORS : Crown: S E O'Connor (Director of Public Prosecutions) Appellant: D J Humpherys (Legal Aid) CATCHWORDS : Criminal appeal - drug supply offences - miscarriage - Evidence Act, s44 - suggestion in cross examination that accused had accumulated assets from illicit dealings well prior to events in question - failure to give any direction. DECISION : Appeal upheld. Convictions set aside and a new trial ordered.

IN THE COURT OF CRIMINAL APPEAL CCA 60578/01

MASONP BARR J MCCLELLAN J

Tuesday 16 April 2002

REGINA v Lisa BEVAN Judgment 1 MASON P: The appellant was tried in the District Court before Judge Twigg QC and a jury. The indictment contained several charges. The first was a charge that on 22 June 2000, she supplied a prohibited drug, cannabis leaf. The second was that between 21 June 2000 and 12 July 2000 there was an ongoing supply of a prohibited drug methylamphetamine. (There were alternative counts to the second.) The third was that on 11 July 2000 she supplied a prohibited drug, being a charge of deemed supply in relation to methylamphetamine. She was found not guilty on the first charge, and found guilty on the second and third. In consequence, the alternative counts did not proceed to a verdict. 2 The second count being the one on which she was first found guilty, arises under s 25A(1) of the Drug Misuse and Trafficking Act 1985, which makes it an offence for a person on three or more separate occasions, during any period of 30 consecutive days, to supply a prohibited drug other than cannabis, for financial or material reward. 3 The Crown case was a very strong one. There was evidence of controlled undercover drug operations, in which two undercover police officers, using assumed names, participated in controlled purchases from the appellant. 4 The first series of events took place on 22 June 2000 and they involved a controlled purchase of a quantity of cannabis and of amphetamines. It would appear however, that that was a transaction which the jury were not satisfied was proven, because the cannabis part of it was the subject of the first count on which the appellant was acquitted, and because there seems to be no reason to distinguish between the alleged supply of the cannabis, and that of methylamphetamine said to have occurred on that occasion. 5 There were however, three other transactions which were the subject of the s 25A(1) offence, and the evidence of the police witnesses was supported by listening device material in relation to two of them. I do not think it necessary to go into the detail, beyond reiterating that in my view this was a strong Crown case. 6 The appellant, in her sworn evidence, denied the transactions and sought to place exculpatory explanations upon the intercepted conversations as recorded pursuant to the listening device warrants. The jury obviously did not accept that explanation. 7 The count of deemed supply of methylamphetamine on 11 July 2000, on which the appellant was also convicted, related to the events that occurred in effect on the occasion when the appellant was arrested. There was a search warrant that was executed. The police officers burst into the appellant's home, the home she shared with her de facto husband, a Mr Harris, and her children. There was evidence from one of the officers that she appeared to be trying to hide something. Her hand was forced open and the officer found a small ball of plastic gladwrap in her hand, the contents of which were analysed and later found to contain some cannabis leaf. 8 The search of the appellant's premises was video taped by the police and played to the court. It showed that in the kitchen there was a plastic snaplock bag, containing white powder, and there was equipment indicative of an ongoing situation, whereby the larger quantity of the white methylamphetamine was broken down into smaller quantities for street sale. There was also found in the kitchen, a number of $50 notes, bundles of notes, and a number of white paper envelopes containing substantial sums of money. Also found there was a bank withdrawal slip, or some such document, which showed "available balance $3,303". 9 The following exchange took place between the police officer Taylor, Mr Harris and the appellant. TAYLOR: Do you agree that for there it says "available balance $3,303"? HARRIS: Um. TAYLOR: That was on the 17th of the 6th. HARRIS: What about it? TAYLOR: I was just saying, do you agree to that. That's all? HARRIS: Yeah. TAYLOR: How do you come to have $3000 in the bank? HARRIS: Fuck, I was working. What do you think I am, a lazy black cunt. I was working at the abattoir and that. I have been working at a few places. BEVAN: Plus all the money we have won on the poker machines. TAYLOR: So we are going to count all the money now...