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... And then there was further discussion. 10 The appellant gave sworn evidence in which she denied participating in the transactions of actual supply. She raised a defence of alibi in relation to one of the occasions. She put an explanation upon an apparently incriminating part of the intercepted conversation. And as regards the material found in the kitchen on the date of the police raid she said in effect that she knew nothing about it; the equipment was not in her possession; and that it was all to do with her husband and his own drug problems. 11 She was cross-examined and this was latish on a Friday afternoon of the trial, being a trial that took place in the country. The Crown Prosecutor asked a number of questions relating to the family wealth. Individual assets were asked about, income and expenditure were explored. The appellant was saying, in effect, that she and her husband were living off social security payments, and that their house and other assets were acquired on borrowed money, that in effect they did not have great sums of money at their disposal. 12 The thrust of the cross-examination, so far as one can perceive really what it was about, was to suggest that there was a stream of income into the family, not explicable by the social security payments, particularly having regard to outgoings, including the cost of ordinary family living for this family. 13 In the context of that broader cross-examination, the appellant was asked about the conversation, as recorded on the video that I have already recounted. She said in effect that the question about the $3000 in the bank was addressed to her husband Mick, as it clearly was. She was then asked about her own interjection about, "plus all the money we have won on the poker machines". 14 The cross-examiner put to her: "Q. So you are saying that moneys that you have got in the house were won on poker machines? A. No, not all of it, some of it would have been, yes. Q. Well, how much would have? A. I couldn't honestly tell you, probably a couple of grand out of it." 15 The Crown Prosecutor asked her when that money was won, and she said: "I can't recall. It's probably anywhere within that time. Like, we went to clubs, pubs whatever." 16 It is not at all clear what she was referring to when she said "within that time". 17 The cross-examiner then asked: "Q. How much did you put through the machines to win the couple of grand? A. It depends on the machines. Sometimes we put $20 in, sometimes we might put $50 in. If we win we might put another $20 in." 18 This cross-examination is understandable, at least to a degree, as being referable to the conversation at the time of the police raid, and in particular, the conversation in which the police officers were exploring the source of the $3000 then currently in what appears to have been the family bank account. The date of that raid was 11 July 2000, and as is already apparent the balance date of the bank account was 17 June 2000. 19 The Crown Prosecutor then moved into what was clearly much more dangerous waters, because he put it to the accused: "It's fair to say isn't it, that you have put a lot of money through the RSL Club? A. No, I wouldn't say a lot of money, no." 20 He then cross-examined her, obviously using a document, in which he put to her the suggestion that between particular dates, namely 1 January 1998 and 11 March 1999 at the Bathurst RSL Club, she put $43,087.52 through the poker machines, and her husband Michael Harris, put $52,671.10 through the poker machines. 21 The witness said that she did not think that that was the amount that was put through. She said at one stage: "... if we won anything we'd pull it out. We don't go and put it all back in the machines, no way." 22 It is very clear that the cross-examiner was using a document, because he read out a reference to "turnover" and put other material to her, in circumstances that involved a clear breach of s 44 of the Evidence Act. All this took place without any objection from counsel. 23 At one stage the cross-examiner said: "You see that totals almost $100,000 doesn't it, what you have put through the machines during those dates?" A. I have never put that much money through the machines". 24 It would appear that the $100,000 was the rough total of the two sums involving the appellant and her husband shown in the RSL document. 25 The cross-examiner endeavoured to get her to agree to some lesser, but nevertheless substantial sum of money having been put through the poker machines during that period. But in substance she would not commit herself, or be drawn on any such figure. 26 Following this cross-examination there were some further questions asked about assets and income. There was however, no attempt to link temporally the RSL information which ended on 11 March 1999 and the evidence concerning the family assets at the time of the police raid some 18 months later. 27 The cross-examination concluded, as I say, on the Friday afternoon and presumably everybody returned to Sydney. 28 Counsel for the appellant, no doubt pondered what had really happened, or not happened on the Friday afternoon, and first thing on the Monday morning, back at Bathurst, he raised the fact that the accused had been cross-examined in relation to her assets and in relation to the poker machine money. He said that he had never been put on notice of that intention by the prosecutor, to which his Honour quite properly asked, well, whether there was any need for him to be put on notice. 29 The point however, seems to have been that Mr Walsh, the barrister, was saying that he was caught on the hop, as it were. I think it can also be said in partial defence of his non-objecton, that it was far from clear what period the cross-examiner was intending to get up to, or where the cross-examination was going to end up. Counsel, as he explained at one stage to his Honour, was reticent to interrupt cross-examination of his client by the Crown Prosecutor, and it is perhaps the case that he thought that there was going to be some closer linkage between the material that was endeavoured to be adduced and the matter the issue in the trial. 30 After having explained again his difficulty in not knowing really what was going to happen, counsel applied for a discharge of the jury. He put it to his Honour that the cross-examination had created an unfairness and prejudice to the accused. He submitted (and I do not think this was disputed) that it had never been part of the prosecution case that the accumulation of assets came from the playing of poker machines, or that the inherent suggestion of laundering money through poker machines was part of that Crown case. He also complained about a breach of the rule in the Queen's Case as embodied in s 44 of the Evidence Act. 31 The learned judge refused the application to discharge the jury, and he gave a five page extempore judgment. His Honour, in effect, acquitted the Crown Prosecutor of any impropriety or unfairness. He did observe that everybody was under some time pressure, because it had not been possible to sit beyond 3 o'clock on the Friday afternoon, and he had put it to the prosecutor that he ought to complete the cross-examination on the Friday afternoon, rather than have it spread over a weekend. This may provide a further clue as to why objections were not taken at the time. 32 His Honour appears to have accepted that there had been a breach of s 44, but he did say this: "In my view although there may have been breaches of proper approach, which I have highlighted, one must not forget whether or not there is a proper cross-examination and its matters are properly brought before the jury (sic). In my view the prosecutor did have the right to raise these matters. There was a clear indication that the excuse, or one of the excuses given for having such sums of money on 11 July 2000 was that they had been playing poker machines. The prosecutor is, in my view, entitled to cross-examine upon those matters, whether or not he should have, in the ancient tradition of the prosecutor's role, given some sort of notice is another matter. The real question for me is whether this trial can proceed, and in my view, there is no unfairness. There is no prejudice. It is perfectly proper material to raise, and I reject the application. In accordance though, with the request from Mr Walsh, I note that the prosecutor has undertaken to the court that he will not refer to those matters again, particularly in his final address and that he has no other material on which he seeks to reopen his case. I, for my part, will not say anything to the jury about any of that part of the evidence." 33 Immediately after the judgment was given, counsel for the appellant, when asked was there anything else, said this: "WALSH: No your Honour. I note your Honour says that your Honour will not say anything to the jury. I would be asking your Honour to ask the jury to disregard that evidence. HIS HONOUR: What, and say something highlighting it? WALSH: Well, just to tell them to disregard it. HIS HONOUR: Why should I do that? WALSH: Well, in my respectful -- HIS HONOUR: It's evidence that I have found is properly admitted. Why should I tell them to disregard it? Mr Walsh, she did say, as the prosecutor rightly pointed out, "plus all the money we've won on the poker machines". I mean, if one can't probe and test that I'm blowed if I know what you can test and probe. WALSH: Well, your Honour, the situation is that the period was 1 January 1998 to 11 March 1999. HIS HONOUR: So? That might be the start of it. The fact that they can lead to the very period doesn't stop cross-examination. WALSH: I just asked your Honour to -- HIS HONOUR: Yes, all right. Thank you. I have noted that. Anything else?" 34 Counsel for the appellant then called a witness, Mr Flannery, who was involved with the RSL, and he endeavoured to elicit evidence explaining how a relatively minor initial investment could produce a relatively high turnover figure in poker machines. It is probably the case that Mr Flannery did get that much evidence before the jury, although the explanation was a somewhat confusing one, and the jury must have been left wondering what exactly it had established, and in any event, what all the talk about poker machine turnover had to do with the matter before them. 35 At the very end of the examination there was an answer, or partial answer given by the witness: "A. Well, at $200 a week you'd, probably would turnover on average, again multiply that by 10, each $2000 in turnover, so -- " 36 It is clear that he was endeavouring to explain that an investment of a particular sum of money could, in the ordinary course, produce a turnover ten times that figure. That answer was objected to, and the evidence was rejected. The matter was not pressed any further, and there was no cross-examination by the Crown Prosecutor. 37 His Honour did deliver the following Parthian shot: "Q. I suppose a punter would know, most punters would know what they are winning or losing at the end of each session, wouldn't they? A. Yes, I would think so." 38 It is not clear what that question was directed to, but the answer was at least capable of casting some uncertainty on the credit of the appellant's evidence. 39 The summing up then proceeded, and consistent with his Honour's indication, nothing was said in relation to the poker machine evidence. 40 This was a case in which the jury were reminded that the Crown put the case upon a basis of involvement in a joint enterprise between the appellant and her husband, and that that was an explanation of the drugs in the premises, consistent with the appellant's guilt. 41 Toward the end of the summing up, counsel for the appellant sought a direction to the effect that the jury be directed to dismiss from their minds evidence about the house, caravan and poker machines that was put to the accused in cross-examination by the prosecutor. Counsel asked his Honour to tell the jury that such matters have absolutely no relevance to this case, and such matters, or suggestions do not form part of the prosecution case, and the prosecution cannot rely on such matters. His Honour declined to give such direction. 42 His Honour also never directed the jury that questions put to a witness that were not assented to by the witness could not be treated as evidence. 43 The appeal is put on a number of bases. The grounds of appeal asserted miscarriage of justice resulting from improper cross-examination, breach of s 44, wrongful refusal to discharge the jury, and error in failing to direct the jury to disregard the relevant part of the cross-examination of the appellant. In essence, all of the matters coalesce. 44 In my view, this trial did miscarry, having regard to the matters to which I have adverted. It is most unfortunate, because as I have already said it was a strong Crown case, and it was quite unnecessary for the Crown Prosecutor to have embarked upon this discursion. It is true that there was no objection taken, but as I have indicated one can perhaps at least reach an understanding why that occurred. 45 But the real problem, it seems to me, occurs in what was not done on the Monday and following after the cross-examination. The Crown had put before the jury, in breach of s 44 of the Evidence Act, material clearly suggestive of the fact that the appellant, and her husband, had been in possession of very substantial sums of money, not explicable by their social security legitimate source of family income. It is true that nothing was said about the matter in addresses, so it appears, and nothing was said in the summing up. But in one sense that is the problem. The material was just left there hanging. 46 The Crown before us accepts that at the end of the day, the end of Friday, the material was inadmissible, except so it was submitted on the basis that it was a legitimate response to the statement made by the appellant seeking to explain the $3000 in the family bank account. In my view that linkage was never established, particularly because of the substantial time lapse between the evidence in the RSL document that was used in the cross-examination and the time of the police raid. 47 The cross-examination left an uncertain pall hanging over the appellant and her credibility. There was, at the very least, a suggestion that she and her husband had accumulated property in time past from illicit dealings, and had, what's more, endeavoured to cover their tracks by churning the money through the poker machines. 48 The large sums of money that were put to the witness were capable of being neutralized to a significant degree, had the jury been given a direction about the evidence that Mr Flannery was at least endeavouring to get before them. But at the critical part of his evidence, there was a successful Crown objection and in any event, the trial judge did not give the jury any assistance about that matter. 49 The Crown invokes the proviso, relying upon the strength of the Crown case, and the submission that ultimately the evidence was not prejudicial. 50 It is true that one benign version of the evidence is that it corroborated the appellant's assertion that she and her husband gambled a lot on the poker machines. But there were also the overtones, or undertones, of worse. And there was a distinct possibility that the jury would have picked up on them and used them as part of their negative assessment of the appellant's credibility. 51 The s25A charge, as indicated, depended upon three proven actual supplies, within a constrained timeframe. Two of those actual supplies were ones in which the police evidence was corroborated by the listening device material, but a third was not. It was therefore a situation in which it was the evidence of the police officers against the evidence of the appellant. 52 The jury were well entitled to have accepted the evidence of the police officers, but that is not the issue. I do not consider this was a situation in which it is appropriate to apply the proviso. In my view the unfortunate miscarriage of the trial means that the conviction must be set aside. I would order a new trial. 53 BARR J: I agree. 54 McCLELLAN J: I also agree. 55 MASON P: The order of the Court therefore is, that the appeal is upheld. The convictions are set aside, and a new trial is ordered. *********** 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.